1. A stockholder may maintain a bill to enjoin the corporation
and its directors from submitting to legislative exactions and
regulations which are unconstitutional and would seriously injure
the business of the corporation. P.
298 U. S.
286.
2. Where irreparable injury from unconstitutional legislation is
certain and imminent, suit for an injunction need not be deferred
until injury has been actually inflicted. P.
298 U. S.
287.
3. The "Bituminous Coal Conservation Act of 1935" declares, with
specifications, that the mining and distribution of such coal are
so affected with a national public interest and so related to the
general welfare that the industry should be regulated. It recites
further, with details, that such regulation is necessary because
interstate commerce is directly and detrimentally affected by the
state of the industry and its practices, and that the right of the
miners to organize and collectively bargain for wages, hours of
labor and working conditions should be guaranteed in order to
prevent constant wage-cutting and disparate labor costs,
detrimental to fair interstate commerce, and in order to prevent
the obstructions to that commerce that arise from disputes over
labor relations at the mines. The Act thereupon provides an
elaborate scheme for the creation of a national commission, the
organization of numerous coal districts, the setting up of numerous
boards in the districts, and the fixing of all prices for
bituminous coal, and of the wages, hours and working conditions of
the miners, throughout the country.
Held:
Page 298 U. S. 239
(1) That a so-called excise tax, imposed by the Act, of 15% of
the sale price or market value at the mine of all bituminous coal
produced in the country, subject to a draw-back of 13 1/2% allowed
to those producers who submit to the price-fixing and labor,
provisions of the Act, is not a tax, but a penalty to coerce
submission, and cannot be upheld as an expression of the taxing
power. P.
298 U. S.
288.
(2) The provisions of the Act looking to the control of the
wages, hours, and working conditions of the miners engaged in the
production of coal, and seeking to guarantee their right of
collective bargaining in these matters, are beyond the powers of
Congress, because --
(a) The Constitution grants to Congress no general power to
regulate for the promotion of the general welfare. P.
298 U. S.
289.
(b) The power expressly granted Congress to regulate interstate
commerce does not include the power to control the conditions in
which coal is produced before it becomes an article of commerce. P.
298 U. S.
297.
(c) The effect on interstate commerce in the coal of labor
conditions involved in its production, including disputes and
strikes over wages, etc., is an indirect effect. P.
298 U. S.
307.
(3) Since a mine owner, by refusing to accept the regulatory
provisions, would incur a prohibitive tax and be deprived, by other
provisions of the Act, of the right to sell coal to the United
States or to any of its contractors for use in performing their
contracts, the regulations are, in fact, compulsory. In view of
this compulsion, provisions of the Act seeking to authorize part of
the producers and miners to fix hours for the entire industry, and
part of the producers and miners in the districts to fix minimum
wages in their districts, are legislative delegation in its most
obnoxious form, and clearly violate the Fifth Amendment. P.
298 U. S.
310.
(4) The price-fixing provisions are not separable from the
provisions concerning labor, and therefore cannot stand
independently. They are so related to and dependent upon the labor
provisions, as conditions, considerations or compensations, as to
make it clearly probable that, the latter being held bad, the
former would not have been passed. P.
298 U. S.
312.
(5) The constitutionality of the price-fixing provisions is not
considered. P.
298 U. S.
316.
4. Whether the end sought to be attained by an Act of Congress
is legitimate is wholly a matter of constitutional power, and
not
Page 298 U. S. 240
at all of legislative discretion. Beneficent aims, however great
or well directed, can never serve in lieu of power. P.
298 U. S.
290.
5. To a constitutional end, many ways are open; but to an end
not within the terms of the Constitution, all ways are closed. P.
298 U. S.
291.
6. The proposition, often advanced and as often discredited,
that the power of the federal government inherently extends to all
purposes affecting the Nation as a whole with which the States
severally cannot deal, or deal adequately, and the related notion
that Congress, entirely apart from those powers delegated by the
Constitution, may enact laws to promote the general welfare, have
always been definitely rejected by this Court. P.
298 U. S.
291.
7. Those who framed and those who adopted the Constitution meant
to carve from the general mass of legislative powers then possessed
by the States only such portions as it was thought wise to confer
upon the federal government, and, in order that there should be no
uncertainty as to what was taken and what was left, the national
powers of legislation were not aggregated, but enumerated -- with
the result that what was not embraced by the enumeration remained
vested in the States without change or impairment. P.
298 U. S.
294.
8. The States, in respect of all powers reserved to them, are
supreme. And since every addition to the national legislative power
to some extent detracts from or invades the power of the States, it
is of vital moment that, in order to preserve the fixed balance
intended by the Constitution, the powers of the general government
be not so extended as to embrace any not within the express terms
of the several grants or the implications necessarily to be drawn
therefrom. P.
298 U. S.
294.
9. The general government possesses no inherent power over the
internal affairs of the States, and emphatically not with regard to
legislation. P.
298 U. S.
295.
10. The determination of the Framers Convention and the
ratifying conventions to preserve complete and unimpaired state
self-government in all matters not committed to the national
government is one of the plainest facts in the history of their
deliberations. Adherence to that determination is incumbent equally
upon the federal government and the States. State powers can
neither be appropriated, on the one hand, nor abdicated, on the
other. P.
298 U. S.
295.
11. If the federal government once begins taking over the powers
of the States, the States may be so despoiled of their powers, or
-- what may amount to the same thing -- be so relieved of the
responsibilities
Page 298 U. S. 241
which the possession of the powers necessarily enjoins, as to
reduce them to little more than geographical divisions of the
national domain. P.
298 U. S.
295.
12. The Constitution is a law -- the supreme law of the land.
Judicial tribunals are required to apply the law to the facts in
every case properly brought before them, and, in so doing, they are
bound to give effect to this supreme law as against any mere
statute conflicting with it. P.
298 U. S.
296.
13. In the discharge of that duty, the opinion of the lawmakers
that a statute passed by them is valid must be given great weight;
but their opinion, or the court's opinion, that the statute will
prove greatly or generally beneficial is wholly irrelevant to the
inquiry. P.
298 U. S.
297.
14. As used in the commerce clause of the Constitution, the term
"commerce" is the equivalent of intercourse for the purposes of
trade, and includes transportation, purchase, sale and exchange of
commodities between citizens of the different States. The power to
regulate commerce embraces the instruments by which commerce is
carried on. P.
298 U. S.
297.
15. Production and manufacture of commodities are not commerce,
even when done with intent to sell or transport the commodities out
of the State. P.
298 U. S.
299.
16. The possibility or even certainty of the exportation of a
product or an article from a State does not put it in interstate
commerce before it has begun to move from the State. To hold
otherwise would be to nationalize all industries. P.
298 U. S.
301.
17. One who produces or manufactures a commodity, subsequently
sold and shipped by him in interstate commerce, whether such sale
and shipment were originally intended or not, has engaged in two
distinct and separate activities. So far as he produces or
manufactures it, his business is purely local. So far as he sells
or ships it, or contracts to do so, to customers in another State,
he engages in interstate commerce. In respect of the former, he is
subject to regulation by the State; in respect of the latter, to
regulation only by the federal government. Production is not
commerce, but a step in preparation for commerce. P.
298 U. S.
303.
18. The incidents leading up to and culminating in the mining of
coal -- the employment of men, the fixing of their wages, hours of
labor and working conditions, the bargaining in respect of these
things -- each and all constitute intercourse for the purposes of
production, not of trade. Commerce in the coal is not brought
into
Page 298 U. S. 242
being by force of these purely local activities, but by
negotiations, agreements and circumstances entirely apart from
production. Mining brings the subject matter of commerce into
existence; commerce disposes of it. P.
298 U. S.
303.
19. To say that an activity or condition has a "direct" effect
upon commerce implies that it operates proximately -- not
mediately, remotely, or collaterally -- to produce the effect,
without the presence of any efficient intervening agency or
condition. P.
298 U. S.
307.
20. The distinction between a direct and an indirect effect upon
interstate commerce is independent of the magnitude of the effect
or of its cause. P.
298 U. S.
308.
21. The evils which come to interstate commerce from struggles
between employer and employees over the matter of wages, working
conditions, the right of collective bargaining, etc., and the
resulting strikes, curtailment and irregularity of production and
effect on prices, however extensive such evils may be, affect
interstate commerce in a secondary and indirect way; they are local
evils over which the federal government has no legislative control.
P.
298 U. S.
308.
22. The want of power in the federal government is the same
whether the wages, hours of service, and working conditions and the
bargaining about them, are related to production before interstate
commerce has begun, or to sale and distribution after it has ended.
Schechter Poultry Corp. v. United States, 295 U.
S. 495. P.
298 U. S.
309.
23. A declaration in a statute that invalidity of any of its
provisions shall not affect the others reverses the presumption of
inseparability, but it does not alter the rule that, if one of two
mutually dependent parts be unconstitutional, the other cannot be
upheld. P.
298 U. S.
312.
63 Washington Law Rep. 986 affirmed in part and reversed in
part.
12 F.
Supp. 570 reversed.
NUMBERS 636 and 651 were cross-writs of certiorari, 296 U.S.
571, removing a case from the United States Court of Appeals for
the District of Columbia, which had reached that court by appeal
from the Supreme Court of the District, but which the upper court
had not heard. It was a suit by Carter, stockholder and president
of the Carter Coal Company, to enjoin the corporation, its officers
and directors, from filing an acceptance of a code formulated under
the Bituminous Coal Conservation Act
Page 298 U. S. 243
of 1935, and from paying the tax imposed by the Act. The
Commissioner of Internal Revenue; a Collector of Internal Revenue,
the Attorney General, and the United States Attorney for the
District of Columbia, were joined as defendants, the bill praying
that they be restrained from attempting to enforce the tax. The
trial court found that the labor provisions of the Act and Code
were unconstitutional, but that the price-fixing provisions were
valid, and were separable from the labor provisions. It therefore
denied relief, except for granting a permanent injunction against
collection of taxes accrued during the suit.
The other two cases (Nos. 649 and 650) were removed to this
Court by certiorari, 296 U.S. 571,
572,
from the Circuit Court of Appeals, where they were pending on
appeal from decrees of a District Court in Kentucky. One was a suit
by several coal companies against a Collector to enjoin him from
collecting the taxes sought to be imposed by the Act mentioned
above. The other was a suit brought by a stockholder against his
corporation and some of its officers, to compel acceptance of the
Act and Code, by mandatory injunction. In these cases, the District
Court found the Act valid in its entirety, and decreed
accordingly.
Page 298 U. S. 278
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
The purposes of the "Bituminous Coal Conservation Act of 1935,"
involved in these suits, as declared by the title, are to stabilize
the bituminous coal mining industry and promote its interstate
commerce; to provide for cooperative marketing of bituminous coal;
to levy a tax on such coal and provide for a drawback under certain
conditions; to declare the production, distribution, and use of
such coal to be affected with a national public interest; to
conserve the national resources of such coal; to provide for the
general welfare, and for other purposes. C. 824, 49 Stat. 991. The
constitutional validity of the act is challenged in each of the
suits.
Nos. 636 and 651 are cross-writs of certiorari in a
stockholder's suit, brought in the Supreme Court of the District of
Columbia by Carter against the Carter Coal Company and some of its
officers, Guy T. Helvering (Commissioner of Internal Revenue of the
United
Page 298 U. S. 279
States), and certain other officers of the United States, to
enjoin the coal company and its officers named from filing an
acceptance of the code provided for in said act, from paying any
tax imposed upon the coal company under the authority of the act,
and from complying with its provisions or the provisions of the
code. The bill sought to enjoin the Commissioner of Internal
Revenue and the other federal officials named from proceeding under
the act in particulars specified, the details of which it is
unnecessary to state.
No. 649 is a suit brought in a federal district court in
Kentucky by petitioners against respondent collector of internal
revenue for the district of Kentucky, to enjoin him from collecting
or attempting to collect the taxes sought to be imposed upon them
by the act, on the ground of its unconstitutionality.
No. 650 is a stockholder's suit brought in the same court
against the coal company and some of its officers, to secure a
mandatory injunction against their refusal to accept and operate
under the provisions of the Bituminous Coal Code prepared in
pursuance of the act.
By the terms of the act, every producer of bituminous coal
within the United States is brought within its provisions.
Section 1 is a detailed assertion of circumstances thought to
justify he act. It declares that the mining and distribution of
bituminous coal throughout the United States by the producer are
affected with a national public interest, and that the service of
such coal in relation to industrial activities, transportation
facilities, health and comfort of the people, conservation by
controlled production and economical mining and marketing,
maintenance of just and rational relations between the public,
owners, producers and employees, the right of the public to
constant and adequate supplies of coal at reasonable prices, and
the general welfare of the nation,
Page 298 U. S. 280
require that the bituminous coal industry should be regulated as
the act provides.
Section 1, among other things, further declares that the
production and distribution by producers of such coal bear upon and
directly affect interstate commerce, and render regulation of
production and distribution imperative for the protection of such
commerce; that certain features connected with the production,
distribution, and marketing have led to waste of the national coal
resources, disorganization of interstate commerce in such coal, and
burdening and obstructing interstate commerce therein; that
practices prevailing in the production of such coal directly affect
interstate commerce and require regulation for the protection of
that commerce, and that the right of mine workers to organize and
collectively bargain for wages, hours of labor, and conditions of
employment should be guaranteed in order to prevent constant wage
cutting and disparate labor costs detrimental to fair interstate
competition and in order to avoid obstructions to interstate
commerce that recur in industrial disputes over labor relations at
the mines. These declarations constitute not enactments of law, but
legislative averments by way of inducement to the enactment which
follows.
The substantive legislation begins with § 2, which establishes
in the Department of the Interior a National Bituminous Coal
Commission, to be appointed and constituted as the section then
specifically provides. Upon this commission is conferred the power
to hear evidence and find facts upon which its orders and actions
may be predicated.
Section 3 provides:
"There is hereby imposed upon the sale or other disposal of all
bituminous coal produced within the United States an excise tax of
15 percentum on the sale price at the mine, or, in the case of
captive coal, the fair market
Page 298 U. S. 281
value of such coal at the mine, such tax, subject to the later
provisions of this section, to be payable to the United States by
the producers of such coal, and to be payable monthly for each
calendar month, on or before the first business day of the second
succeeding month, and under such regulations, and in such manner,
as shall be prescribed by the Commissioner of Internal Revenue:
Provided, That in the case of captive coal produced as
aforesaid, the Commissioner of Internal Revenue shall fix a price
therefor at the current market price for the comparable kind,
quality, and size of coals in the locality where the same is
produced:
Provided further, That any such coal producer
who has filed with the National Bituminous Coal Commission his
acceptance of the code provided for in section 4 of this Act, and
who acts in compliance with the provisions of such code, shall be
entitled to a drawback in the form of a credit upon the amount of
such tax payable hereunder, equivalent to 90 percentum of the
amount of such tax, to be allowed and deducted therefrom at the
time settlement therefor is required, in such manner as shall be
prescribed by the Commissioner of Internal Revenue. Such right or
benefit of drawback shall apply to all coal sold or disposed of
from and after the day of the producer's filing with the Commission
his acceptance of said code in such form of agreement as the
Commission may prescribe. No producer shall by reason of his
acceptance of the code provided for in section 4 or of the drawback
of taxes provided in section 3 of this Act be held to be precluded
or estopped from contesting the constitutionality of any provision
of said code, or its validity as applicable to such producer."
Section 4 provides that the commission shall formulate the
elaborate provisions contained therein into a working agreement to
be known as the Bituminous Coal Code. These provisions require the
organization of twenty-three
Page 298 U. S. 282
coal districts, each with a district board the membership of
which is to be determined in a manner pointed out by the act.
Minimum prices for coal are to be established by each of these
boards, which is authorized to make such classification of coals
and price variation as to mines and consuming market areas as it
may deem proper.
"In order to sustain the stabilization of wages, working
conditions, and maximum hours of labor, said prices shall be
established so as to yield a return per net ton for each district
in a minimum price area, as such districts are identified and such
area is defined in the subjoined table designated 'Minimum-price
area table,' equal as nearly as may be to the weighted average of
the total costs, per net ton, determined as hereinafter provided,
of the tonnage of such minimum price area. The computation of the
total costs shall include the cost of labor, supplies, power,
taxes, insurance, workmen's compensation, royalties, depreciation,
and depletion (as determined by the Bureau of Internal Revenue in
the computation of the Federal income tax) and all other direct
expenses of production, coal operators' association dues, district
board assessments for Board operating expenses only levied under
the code, and reasonable costs of selling and the cost of
administration."
The district board must determine and adjust the total cost of
the ascertainable tonnage produced in the district so as to give
effect to any changes in wage rates, hours of employment, or other
factors substantially affecting costs, which may have been
established since January 1st, 1934.
Without repeating the long and involved provisions with regard
to the fixing of minimum prices, it is enough to say that the act
confers the power to fix the minimum price of coal at each and
every coal mine in the United States, with such price variations as
the board may deem necessary and proper. There is also a provision
authorizing the commission, when deemed necessary in the public
Page 298 U. S. 283
interest, to establish maximum prices in order to protect the
consumer against unreasonably high prices.
All sales and contracts for the sale of coal are subject to the
code prices provided for and in effect when such sales and
contracts are made. Various unfair methods of competition are
defined and forbidden.
The labor provisions of the code, found in Part III of the same
section, require that, in order to effectuate the purposes of the
act, the district boards and code members shall accept specified
conditions contained in the code, among which are the
following:
Employees to be given the right to organize and bargain
collectively, through representatives of their own choosing, free
from interference, restraint, or coercion of employers or their
agents in respect of their concerted activities.
Such employees to have the right of peaceable assemblage for the
discussion of the principles of collective bargaining, and to
select their own check-weighman to inspect the weighing or
measuring of coal.
A labor board is created, consisting of three members, to be
appointed by the President and assigned to the Department of Labor.
Upon this board is conferred authority to adjudicate disputes
arising under the provisions just stated, and to determine whether
or not an organization of employees had been promoted, or is
controlled or dominated by, an employer in its organization,
management, policy, or election of representatives. The board "may
order a code member to meet the representatives of its employees
for the purpose of collective bargaining."
Subdivision (g) of Part III provides:
"Whenever the maximum daily and weekly hours of labor are agreed
upon in any contract or contracts negotiated between the producers
of more than two-thirds the annual national tonnage production for
the
Page 298 U. S. 284
preceding calendar year and the representatives of more than
one-half of the mine workers employed, such maximum hours of labor
shall be accepted by all the code members. The wage agreement or
agreements negotiated by collective bargaining in any district or
group of two or more districts, between representatives of
producers of more than two-thirds of the annual tonnage production
of such district or each of such districts in a contracting group
during the preceding calendar year, and representatives of the
majority of the mine workers therein, shall be filed with the Labor
Board and shall be accepted as the minimum wages for the various
classifications of labor by the code members operating in such
district or group of districts."
The bill of complaint in Nos. 636 and 651 was filed in the
Supreme Court of the District of Columbia on August 31, 1935, the
day after the Coal Conservation Act came into effect. That court,
among other things, found that the suit was brought in good faith;
that, if Carter Coal Company should join the code, it would be
compelled to cancel existing contracts and pay its proportionate
share of administering the code; that the production of bituminous
coal is a local activity carried on within state borders; that coal
is the nation's greatest and primary source of energy, vital to the
public welfare, of the utmost importance to the industrial and
economic life of the nation and the health and comfort of its
inhabitants, and that its distribution in interstate commerce
should be regular, continuous, and free of interruptions,
obstructions, burdens, and restraints.
Other findings are to the effect that such coal is generally
sold f.o.b. mine, and the predominant portion of it shipped outside
the state in which it is produced; that the distribution and
marketing is predominantly interstate in character, and that the
intrastate distribution
Page 298 U. S. 285
and sale are so connected that interstate regulation cannot be
accomplished effectively unless transactions of intrastate
distribution and sale be regulated.
The court further found the existence of a condition of
unrestrained and destructive competition in the system of
distribution and marketing such coal, and of destructive
price-cutting, burdening and restraining interstate commerce and
dislocating and diverting its normal flow.
The court concluded as a matter of law that the bringing of the
suit was not premature; that the plaintiff was without legal
remedy, and rightly invoked relief in equity; that the labor
provisions of the act and code were unconstitutional for reasons
stated, but the price-fixing provisions were valid and
constitutional; that the labor provisions are separable; and, since
the provisions with respect to price-fixing and unfair competition
are valid, the taxing provisions of the act could stand. Therefore,
except for granting a permanent injunction against collection of
the "taxes" accrued during the suit (
Ex parte Young,
209 U. S. 123,
209 U. S.
147-148), the court denied the relief sought, and
dismissed the bill.
Appeals were taken to the United States Court of Appeals for the
District of Columbia by the parties, but, pending hearing and
submission in that court, petitions for writs of certiorari were
presented asking us to review the decree of the Supreme Court of
the District without awaiting such hearing and submission. Because
of the importance of the question and the advantage of a speedy
final determination thereof, the writs were granted.
The remaining two suits (Nos. 649 and 650), involving the same
questions, were brought in the federal District Court for the
Western District of Kentucky. That court held the act valid and
constitutional in its entirety, and entered a decree accordingly.
12 F.
Supp. 570. Appeals were taken to the Circuit Court of Appeals
for the Sixth
Page 298 U. S. 286
Circuit; but, as in the Carter case and for the same reasons,
this court granted writs of certiorari in advance of hearing and
submission.
The questions involved will be considered under the following
heads:
1. The right of stockholders to maintain suits of this
character.
2. Whether the suits were prematurely brought.
3. Whether the exaction of 15 percentum on the sale price of
coal at the mine is a tax or a penalty.
4. The purposes of the act as set forth in § 1, and the
authority vested in Congress by the Constitution to effectuate
them.
5. Whether the labor provisions of the act can be upheld as an
exercise of the power to regulate interstate commerce.
6. Whether subdivision (g) of Part III of the Code, is an
unlawful delegation of power.
7. The constitutionality of the price-fixing provisions, and the
question of severability -- that is to say, whether, if either the
group of labor provisions or the group of price-fixing provisions
be found constitutionally invalid, the other can stand as
separable.
First. In the Carter case (Nos. 636 and 651), the
stockholder who brought the suit had formally demanded of the board
of directors that the company should not join the code, should
refuse to pay the tax fixed by the act, and should bring
appropriate Judicial proceedings to prevent an unconstitutional and
improper diversion of the assets of the company and to have
determined the liability of the company under the act. The board
considered the demand, determined that, while it believed the act
to be unconstitutional and economically unsound, and that it would
adversely affect the business of the company if accepted,
nevertheless, it should accept the code provided for by the act
because the penalty in the form
Page 298 U. S. 287
of a 15% tax on its gross sales would be seriously injurious,
and might result in bankruptcy. This action of the board was
approved by a majority of the shareholders at a special meeting
called for the purpose of considering it.
In the Tway Company cases, the company itself brought suit to
enjoin the enforcement of the act (No. 649), and a stockholder
brought suit to compel the company to accept the code and operate
under its provisions (No. 650).
Without repeating the long averments of the several bills, we
are of opinion that the suits were properly brought and were
maintainable in a court of equity. The right of stockholders to
bring such suits under the circumstances disclosed is settled by
the recent decision of this court in
Ashwander v. Tennessee
Valley Authority, 297 U. S. 288 and
requires no further discussion.
Second. That the suits were not prematurely brought
also is clear. Section 2 of the act is mandatory in its requirement
that the commission be appointed by the President. The provisions
of § 4 that the code be formulated and promulgated are equally
mandatory. The so-called tax of 15% is definitely imposed, and its
exaction certain to ensue.
In
Pennsylvania v. West Virginia, 262 U.
S. 553,
262 U. S.
592-595, suits were brought by Pennsylvania and Ohio
against West Virginia to enjoin the defendant state from enforcing
an act of her legislature upon the ground that it would injuriously
affect or cut off the supply of natural gas produced in her
territory and carried by pipelines into the territory of the
plaintiff states, and there sold and used. These suits were brought
a few days after the West Virginia act became effective. No order
had yet been made under it by the Public Service Commission, nor
had it been tested in actual practice. But it appeared that the act
was certain to operate as the complainant
Page 298 U. S. 288
states apprehended it would. This court held that the suit was
not premature.
"One does not have to await the consummation of threatened
injury to obtain preventive relief. If the injury is certainly
impending, that is enough."
Pierce v. Society of Sisters, 268 U.
S. 510,
268 U. S.
535-536, involved the constitutional validity of the
Oregon Compulsory Education Act, which required every parent or
other person having control of a child between the ages of eight
and sixteen years to send him to the public school of the district
where he resides. Suit was brought to enjoin the operation of the
act by corporations owning and conducting private schools, on the
ground that their business and property were threatened with
destruction through the unconstitutional compulsion exercised by
the act upon parents and guardians. The suits were held to be not
premature, although the effective date of the act had not yet
arrived. We said --
"The injury to appellees was present and very real, not a mere
possibility in the remote future. If no relief had been possible
prior to the effective date of the Act, the injury would have
become irreparable. Prevention of impending injury by unlawful
action is a well recognized function of courts of equity."
See also Terrace v. Thompson, 263 U.
S. 197,
263 U. S.
215-216;
Swift & Co. v. United States,
276 U. S. 311,
276 U. S. 326;
Euclid v. Ambler Realty Co., 272 U.
S. 365,
272 U. S. 386;
City Bank Co. v. Schnader, 291 U. S.
24,
291 U. S.
34.
Third. The so-called excise tax of 15 percentum on the
sale price of coal at the mine, or, in the case of captive coal the
fair market value, with its drawback allowance of 13 1/2%, is
clearly not a tax, but a penalty. The exaction applies to all
bituminous coal produced, whether it be sold, transported or
consumed in interstate commerce, or transactions in respect of it
be confined wholly
Page 298 U. S. 289
to the limits of the state. It also applies to "captive coal" --
that is to say, coal produced for the sole use of the producer.
It is very clear that the "excise tax" is not imposed for
revenue, but exacted as a penalty to compel compliance with the
regulatory provisions of the act. The whole purpose of the exaction
is to coerce what is called an agreement -- which, of course, it is
not, for it lacks the essential element of consent. One who does a
thing in order to avoid a monetary penalty does not agree; he
yields to compulsion precisely the same as though he did so to
avoid a term in jail.
The exaction here is a penalty, and not a tax, within the test
laid down by this court in numerous cases.
Child Labor Tax
Case, 259 U. S. 20,
259 U. S. 37-39;
United States v. La Franca, 282 U.
S. 568,
282 U. S. 572;
United States v. Constantine, 296 U.
S. 287,
296 U. S. 293
et seq.; United States v. Butler, 297 U. S.
1,
297 U. S. 70.
While the lawmaker is entirely free to ignore the ordinary meanings
of words and make definitions of his own,
Karnuth v. United
States, 279 U. S. 231,
279 U. S. 242;
Tyler v. United States, 281 U. S. 497,
281 U. S. 502,
that device may not be employed so as to change the nature of the
acts or things to which the words are applied. But it is not
necessary to pursue the matter further. That the "tax" is, in fact,
a penalty is not seriously in dispute. The position of the
Government, as we understand it, is that the validity of the
exaction does not rest upon the taxing power, but upon the power of
Congress to regulate interstate commerce, and that, if the act in
respect of the labor and price-fixing provisions be not upheld, the
"tax" must fall with them. With that position we agree, and confine
our consideration accordingly.
Fourth. Certain recitals contained in the act plainly
suggest that its makers were of opinion that its constitutionality
could be sustained under some general federal
Page 298 U. S. 290
power thought to exist apart from the specific grants of the
Constitution. The fallacy of that view will be apparent when we
recall fundamental principles which, although hitherto often
expressed in varying forms of words, will bear repetition whenever
their accuracy seems to be challenged. The recitals to which we
refer are contained in § 1 (which is simply a preamble to the act),
and, among others, are to the effect that the distribution of
bituminous coal is of national interest, affecting the health and
comfort of the people and the general welfare of the nation; that
this circumstance, together with the necessity of maintaining just
and rational relations between the public, owners, producers, and
employees, and the right of the public to constant and adequate
supplies at reasonable prices, require regulation of the industry
as the act provides. These affirmations -- and the further ones
that the production and distribution of such coal "directly affect
interstate commerce," because of which and of the waste of the
national coal resources and other circumstances, the regulation is
necessary for the protection of such commerce -- do not constitute
an exertion of the will of Congress, which is legislation, but a
recital of considerations which in the opinion of that body existed
and justified the expression of its will in the present act.
Nevertheless, this preamble may not be disregarded. On the
contrary, it is important because it makes clear, except for the
pure assumption that the conditions described "directly" affect
interstate commerce, that the powers which Congress undertook to
exercise are not specific, but of the most general character --
namely, to protect the general public interest and the health and
comfort of the people, to conserve privately owned coal, maintain
just relations between producers and employees and others, and
promote the general welfare, by controlling nationwide production
and distribution of coal. These, it may be conceded, are objects of
great worth;
Page 298 U. S. 291
but are they ends the attainment of which has been committed by
the Constitution to the federal government? This is a vital
question, for nothing is more certain than that beneficent aims,
however great or well directed, can never serve in lieu of
constitutional power.
The ruling and firmly established principle is that the powers
which the general government may exercise are only those
specifically enumerated in the Constitution and such implied powers
as are necessary and proper to carry into effect the enumerated
powers. Whether the end sought to be attained by an act of Congress
is legitimate is wholly a matter of constitutional power, and not
at all of legislative discretion. Legislative congressional
discretion begins with the choice of means, and ends with the
adoption of methods and details to carry the delegated powers into
effect. The distinction between these two things -- power and
discretion -- is not only very plain, but very important. For while
the powers are rigidly limited to the enumerations of the
Constitution, the means which may be employed to carry the powers
into effect are not restricted, save that they must be appropriate,
plainly adapted to the end, and not prohibited by, but consistent
with, the letter and spirit of the Constitution.
McCulloch
v. Maryland, 4 Wheat. 316,
17 U. S. 421.
Thus, it may be said that, to a constitutional end, many ways are
open, but to an end not within the terms of the Constitution, all
ways are closed.
The proposition, often advanced and as often discredited, that
the power of the federal government inherently extends to purposes
affecting the nation as a whole with which the states severally
cannot deal or cannot adequately deal, and the related notion that
Congress, entirely apart from those powers delegated by the
Constitution, may enact laws to promote the general welfare, have
never been accepted, but always definitely rejected, by this court.
Mr. Justice Story, as early as 1816,
Page 298 U. S. 292
laid down the cardinal rule, which has ever since been followed
-- that the general government
"can claim no powers which are not granted to it by the
Constitution, and the powers actually granted, must be such as are
expressly given, or given by necessary implication."
Martin v. Hunter's
Lessee, 1 Wheat. 304,
14 U. S. 326.
In the Framers Convention, the proposal to confer a general power
akin to that just discussed was included in Mr. Randolph's
resolutions, the sixth of which, among other things, declared that
the National Legislature ought to enjoy the legislative rights
vested in Congress by the Confederation, and,
"moreover, to legislate in all cases to which the separate
States are incompetent, or in which the harmony of the United
States may be interrupted by the exercise of individual
Legislation."
The convention, however, declined to confer upon Congress power
in such general terms, instead of which it carefully limited the
powers which it thought wise to entrust to Congress by specifying
them, thereby denying all others not granted expressly or by
necessary implication. It made no grant of authority to Congress to
legislate substantively for the general welfare,
United States
v. Butler, supra, p.
297 U. S. 64, and
no such authority exists, save as the general welfare may be
promoted by the exercise of the powers which are granted.
Compare Jacobson v. Massachusetts, 197 U. S.
11,
197 U. S.
22.
There are many subjects in respect of which the several states
have not legislated in harmony with one another, and in which their
varying laws and the failure of some of them to act at all have
resulted in injurious confusion and embarrassment.
See Addyston
Pipe & Steel Co. v. United States, 175 U.
S. 211,
175 U. S.
232-233. The state laws with respect to marriage and
divorce present a case in point, and the great necessity of
national legislation on that subject has been from time to time
vigorously urged. Other pertinent examples are laws with respect to
negotiable
Page 298 U. S. 293
instruments, desertion and nonsupport, certain phases of state
taxation, and others which we do not pause to mention. In many of
these fields of legislation, the necessity of bringing the
applicable rules of law into general harmonious relation has been
so great that a Commission on Uniform State Laws, composed of
commissioners from every state in the Union, has for many years
been industriously and successfully working to that end by
preparing and securing the passage by the several states of uniform
laws. If there be an easier and constitutional way to these
desirable results through congressional action it thus far has
escaped discovery.
Replying directly to the suggestion advanced by counsel in
Kansas v. Colorado, 206 U. S. 46,
206 U. S. 89-90,
to the effect that necessary powers national in their scope must be
found vested in Congress, though not expressly granted or
essentially implied, this court said:
"But the proposition that there are legislative powers affecting
the Nation as a whole which belong to, although not expressed in
the grant of powers, is in direct conflict with the doctrine that
this is a government of enumerated powers. That this is such a
government clearly appears from the Constitution, independently of
the Amendments, for otherwise there would be an instrument granting
certain specified things made operative to grant other and distinct
things. This natural construction of the original body of the
Constitution is made absolutely certain by the Tenth Amendment.
This amendment, which was seemingly adopted with prescience of just
such contention as the present, disclosed the widespread fear that
the National Government might, under the pressure of a supposed
general welfare, attempt to exercise powers which had not been
granted. With equal determination, the framers intended that no
such assumption should ever find justification in the organic act,
and that if, in the future, further powers seemed necessary they
should
Page 298 U. S. 294
be granted by the people in the manner they had provided for
amending that act."
The general rule with regard to the respective powers of the
national and the state governments under the Constitution is not in
doubt. The states were before the Constitution, and, consequently,
their legislative powers antedated the Constitution. Those who
framed and those who adopted that instrument meant to carve from
the general mass of.legislative powers then possessed by the states
only such portions as it was thought wise to confer upon the
federal government, and, in order that there should be no
uncertainty in respect of what was taken and what was left, the
national powers of legislation were not aggregated, but enumerated
-- with the result that what was not embraced by the enumeration
remained vested in the states without change or impairment. Thus,
"when it was found necessary to establish a national government for
national purposes," this court said in
Munn v. Illinois,
94 U. S. 113,
94 U. S.
124,
"a part of the powers of the States and of the people of the
States was granted to the United States and the people of the
United States. This grant operated as a further limitation upon the
powers of the States, so that now the governments of the States
possess all the powers of the Parliament of England except such as
have been delegated to the United States or reserved by the
people."
While the states are not sovereign in the true sense of that
term, but only
quasi-sovereign, yet, in respect of all
powers reserved to them, they are supreme -- "as independent of the
general government as that government, within its sphere, is
independent of the States."
Collector v.
Day, 11 Wall. 113,
78 U. S. 124.
And since every addition to the national legislative power to some
extent detracts from or invades the power of the states, it is of
vital moment that, in order to preserve the fixed balance intended
by the Constitution, the powers of the general government
Page 298 U. S. 295
be not so extended as to embrace any not within the express
terms of the several grants or the implications necessarily to be
drawn therefrom. It is no longer open to question that the general
government, unlike the states,
Hammer v. Dagenhart,
247 U. S. 251,
247 U. S. 275,
possesses no inherent power in respect of the internal affairs of
the states, and emphatically not with regard to legislation. The
question in respect of the inherent power of that government as to
the external affairs of the nation and in the field of
international law is a wholly different matter, which it is not
necessary now to consider.
See, however, Jones v. United
States, 137 U. S. 202,
137 U. S. 212;
Nishimura Ekiu v. United States, 142 U.
S. 651,
142 U. S. 659;
Fong Yue Ting v. United States, 149 U.
S. 698,
149 U. S. 705
et seq.; Burnet v. Brooks, 288 U.
S. 378,
288 U. S.
396.
The determination of the Framers Convention and the ratifying
conventions to preserve complete and unimpaired state
self-government in all matters not committed to the general
government is one of the plainest facts which emerge from the
history of their deliberations. And adherence to that determination
is incumbent equally upon the federal government and the states.
State powers can neither be appropriated, on the one hand, nor
abdicated, on the other. As this court said in
Texas v.
White, 7 Wall. 700,
74 U. S. 725
--
"the preservation of the States, and the maintenance of their
governments, are as much within the design and care of the
Constitution as the preservation of the Union and the maintenance
of the National Government. The Constitution, in all its
provisions, looks to an indestructible Union, composed of
indestructible States."
Every journey to a forbidden end begins with the first step, and
the danger of such a step by the federal government in the
direction of taking over the powers of the states is that the end
of the journey may find the states so despoiled of their powers, or
-- what may amount to the same thing -- so
Page 298 U. S. 296
relieved of the responsibilities which possession of the powers
necessarily enjoins, as to reduce them to little more than
geographical subdivisions of the national domain. It is safe to say
that, if, when the Constitution was under consideration, it had
been thought that any such danger lurked behind its plain words, it
would never have been ratified.
And the Constitution itself is, in every real sense, a law --
the lawmakers being the people themselves, in whom, under our
system, all political power and sovereignty primarily resides, and
through whom such power and sovereignty primarily speaks. It is by
that law, and not otherwise, that the legislative, executive, and
judicial agencies which it created exercise such political
authority as they have been permitted to possess. The Constitution
speaks for itself in terms so plain that to misunderstand their
import is not rationally possible. "We the people of the United
States," it says, "do ordain and establish this Constitution . . ."
Ordain and establish! These are definite words of enactment, and,
without more, would stamp what follows with the dignity and
character of law. The framers of the Constitution, however, were
not content to let the matter rest here, but provided explicitly
--
"This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof; . . . shall be the supreme Law
of the Land; . . ."
The supremacy of the Constitution as law is thus declared
without qualification. That supremacy is absolute; the supremacy of
a statute enacted by Congress is not absolute, but conditioned upon
its being made in pursuance of the Constitution. And a judicial
tribunal, clothed by that instrument with complete judicial power,
and, therefore, by the very nature of the power, required to
ascertain and apply the law to the facts in every case or
proceeding properly brought for adjudication, must apply the
supreme law and reject the inferior statute
Page 298 U. S. 297
whenever the two conflict. In the discharge of that duty, the
opinion of the lawmakers that a statute passed by them is valid
must be given great weight,
Adkins v. Children's Hospital,
261 U. S. 525,
261 U. S. 544;
but their opinion, or the court's opinion, that the statute will
prove greatly or generally beneficial is wholly irrelevant to the
inquiry.
Schechter v. United States, 295 U.
S. 495,
295 U. S.
549-550.
We have set forth, perhaps at unnecessary length, the foregoing
principles, because it seemed necessary to do so in order to
demonstrate that the general purposes which the act recites, and
which, therefore, unless the recitals be disregarded, Congress
undertook to achieve, are beyond the power of Congress except so
far, and only so far, as they may be realized by an exercise of
some specific power granted by the Constitution. Proceeding by a
process of elimination which it is not necessary to follow in
detail, we shall find no grant of power which authorizes Congress
to legislate in respect of these general purposes unless it be
found in the commerce clause -- and this we now consider.
Fifth. Since the validity of the act depends upon
whether it is a regulation of interstate commerce, the nature and
extent of the power conferred upon Congress by the commerce clause
becomes the determinative question in this branch of the case. The
commerce clause vests in Congress the power -- "To regulate
Commerce with foreign Nations, and among the several States, and
with the Indian Tribes." The function to be exercised is that of
regulation. The thing to be regulated is the commerce described. In
exercising the authority conferred by this clause of the
Constitution, Congress is powerless to regulate anything which is
not commerce, as it is powerless to do anything about commerce
which is not regulation. We first inquire, then -- What is
commerce? The term, as this court many times has said, is
Page 298 U. S. 298
one of extensive import. No all-embracing definition has ever
been formulated. The question is to be approached both
affirmatively and negatively -- that is to say, from the points of
view as to what it includes and what it excludes.
In
Gibbons v.
Ogden, 9 Wheat. 1,
22 U. S. 189-190,
Chief Justice Marshall said:
"Commerce, undoubtedly, is traffic, but it is something more: it
is intercourse. It describes the commercial intercourse between
nations, and parts of nations, in all its branches, and is
regulated by prescribing rules for carrying on that intercourse. .
. ."
As used in the Constitution, the word "commerce" is the
equivalent of the phrase "intercourse for the purposes of trade,"
and includes transportation, purchase, sale, and exchange of
commodities between the citizens of the different states. And the
power to regulate commerce embraces the instruments by which
commerce is carried on.
Welton v. Missouri, 91 U. S.
275,
91 U. S. 280;
Addyston Pipe & Steel Co. v. United States,
175 U. S. 211,
175 U. S. 241;
Hopkins v. United States, 171 U.
S. 578,
171 U. S. 597.
In
Adair v. United States, 208 U.
S. 161,
208 U. S. 177,
the phrase "Commerce among the several States" was defined as
comprehending
"traffic, intercourse, trade, navigation, communication, the
transit of persons and the transmission of messages by telegraph --
indeed, every species of commercial intercourse among the several
States."
In
Veazie v.
Moor, 14 How. 568,
55 U. S.
573-574, this court, after saying that the phrase could
never be applied to transactions wholly internal, significantly
added:
"Nor can it be properly concluded, that, because the products of
domestic enterprise in agriculture or manufactures or in the arts
may ultimately become the subjects of foreign commerce, that the
control of the means or the encouragements by which enterprise is
fostered and protected is legitimately within the import of the
phrase
foreign commerce, or fairly implied
Page 298 U. S. 299
in any investiture of the power to regulate such commerce. A
pretension as far-reaching as this would extend to contracts
between citizen and citizen of the same State, would control the
pursuits of the planter, the grazier, the manufacturer, the
mechanic, the immense operations of the collieries and mines and
furnaces of the country; for there is not one of these avocations
the results of which may not become the subjects of foreign
commerce, and be borne either by turnpikes, canals, or railroads
from point to point within the several States towards an ultimate
destination like the one above mentioned. . . ."
The distinction between manufacture and commerce was discussed
in
Kidd v. Pearson, 128 U. S. 1,
128 U. S. 20,
128 U. S. 21, 22,
and it was said:
"No distinction is more popular to the common mind, or more
clearly expressed in economic and political literature, than that
between manufacture and commerce. Manufacture is transformation --
the fashioning of raw materials into a change of form for use. The
functions of commerce are different. . . . If it be held that the
term includes the regulation of all such manufactures as are
intended to be the subject of commercial transactions in the
future, it is impossible to deny that it would also include all
productive industries that contemplate the same thing. The result
would be that Congress would be invested, to the exclusion of the
States, with the power to regulate not only manufactures, but also
agriculture, horticulture, stock raising, domestic fisheries,
mining -- in short, every branch of human industry. For is there
one of them that does not contemplate, more or less clearly, an
interstate or foreign market? Does not the wheat grower of the
Northwest and the cotton planter of the South plant, cultivate, and
harvest his crop with an eye on the prices at Liverpool, New York,
and Chicago? The power being vested in Congress and
Page 298 U. S. 300
denied to the States, it would follow as an inevitable result
that the duty would devolve on Congress to regulate all of these
delicate, multiform and vital interests -- interests which, in
their nature, are and must be local in all the details of their
successful management."
And then, as though foreseeing the present controversy, the
opinion proceeds:
"Any movement toward the establishment of rules of production in
this vast country, with its many different climates and
opportunities, could only be at the sacrifice of the peculiar
advantages of a large part of the localities in it, if not of every
one of them. On the other hand, any movement toward the local,
detailed and incongruous legislation required by such
interpretation would be about the widest possible departure from
the declared object of the clause in question. Nor this alone. Even
in the exercise of the power contended for, Congress would be
confined to the regulation not of certain branches of industry,
however numerous, but to those instances in each and every branch
where the producer contemplated an interstate market. . . . A
situation more paralyzing to the state governments, and more
provocative of conflicts between the general government and the
States, and less likely to have been what the framers of the
Constitution intended it would be difficult to imagine."
Chief Justice Fuller, speaking for this court in
United
States v. E. C. Knight Co., 156 U. S. 1,
156 U. S. 12,
156 U. S. 13,
said:
"Doubtless the power to control the manufacture of a given thing
involves in a certain sense the control of its disposition, but
this is a secondary, and not the primary, sense, and, although the
exercise of that power may result in bringing the operation of
commerce into play, it does not control it, and affects it only
incidentally and indirectly. Commerce succeeds to manufacture, and
is not a part of it. . . . "
Page 298 U. S. 301
"It is vital that the independence of the commercial power and
of the police power, and the delimitation between them, however
sometimes perplexing, should always be recognized and observed, for
while the one furnishes the strongest bond of union, the other is
essential to the preservation of the autonomy of the States, as
required by our dual form of government, and acknowledged evils,
however grave and urgent they may appear to be, had better be borne
than the risk be run, in the effort to suppress them, of more
serious consequences by resort to expedients of even doubtful
constitutionality."
". . . The regulation of commerce applies to the subjects of
commerce, and not to matters of internal police. Contracts to buy,
sell, or exchange goods to be transported among the several States,
the transportation and its instrumentalities, and articles bought,
sold, or exchanged for the purposes of such transit among the
States, or put in the way of transit, may be regulated, but this is
because they form part of interstate trade or commerce. The fact
that an article is manufactured for export to another State does
not, of itself, make it an article of interstate commerce, and the
intent of the manufacturer does not determine the time when the
article or product passes from the control of the State and belongs
to commerce. . . ."
That commodities produced or manufactured within a state are
intended to be sold or transported outside the state does not
render their production or manufacture subject to federal
regulation under the commerce clause. As this court said in
Coe
v. Errol, 116 U. S. 517,
116 U. S.
526,
"Though intended for exportation, they may never be exported;
the owner has a perfect right to change his mind, and until
actually put in motion for some place out of the State or committed
to the custody of a carrier for transportation to such place, why
may they not be regarded as still remaining a part of the general
mass of
Page 298 U. S. 302
property in the State?"
It is true that this was said in respect of a challenged power
of the state to impose a tax, but the query is equally pertinent
where the question, as here, is with regard to the power of
regulation. The case was relied upon in
Kidd v. Pearson,
supra, p.
128 U. S. 26. "The
application of the principles above announced," it was there
said,
"to the case under consideration leads to a conclusion against
the contention of the plaintiff in error. The police power of a
State is as broad and plenary as its taxing power, and property
within the State is subject to the operations of the former so long
as it is within the regulating restrictions of the latter."
In
Heisler v. Thomas Colliery Co., 260 U.
S. 245,
260 U. S.
259-260, we held that the possibility, or even
certainty, of exportation of a product or article from a state did
not determine it to be in interstate commerce before the
commencement of its movement from the state. To hold otherwise
"would nationalize all industries, it would nationalize and
withdraw from state jurisdiction and deliver to federal commercial
control the fruits of California and the South, the wheat of the
West and its meats, the cotton of the South, the shoes of
Massachusetts and the woolen industries of other States, at the
very inception of their production or growth, that is, the fruits
unpicked, the cotton and wheat ungathered, hides and flesh of
cattle yet 'on the hoof,' wool yet unshorn, and coal yet unmined,
because they are in varying percentages destined for and surely to
be exported to States other than those of their production."
In
Oliver Iron Co. v. Lord, 262 U.
S. 172,
262 U. S. 178,
we said on the authority of numerous cited cases:
"Mining is not interstate commerce, but, like manufacturing, is
a local business subject to local regulation and taxation. . . .
Its character in this regard is intrinsic, is not affected by the
intended use or disposal of the product, is not controlled by
contractual engagements, and persists even
Page 298 U. S. 303
though the business be conducted in close connection with
interstate commerce."
The same rule applies to the production of oil.
"Such production is essentially a mining operation, and
therefore is not a part of interstate commerce even though the
product obtained is intended to be and, in fact, is immediately
shipped in such commerce."
Champlin Rfg. Co. v. Corporation Commission,
286 U. S. 210,
286 U. S. 235.
One who produces or manufactures a commodity, subsequently sold and
shipped by him in interstate commerce, whether such sale and
shipment were originally intended or not, has engaged in two
distinct and separate activities. So far as he produces or
manufactures a commodity, his business is purely local. So far as
he sells and ships or contracts to sell and ship the commodity to
customers in another state, he engages in interstate commerce. In
respect of the former, he is subject only to regulation by the
state; in respect of the latter, to regulation only by the federal
government.
Utah Power & L. Co. v. Pfost, 286 U.
S. 165,
286 U. S. 182.
Production is not commerce, but a step in preparation for commerce.
Chassaniol v. Greenwood, 291 U. S. 584,
291 U. S. 587.
We have seen that the word "commerce" is the equivalent of the
phrase "intercourse for the purposes of trade." Plainly, the
incidents leading up to and culminating in the mining of coal do
not constitute such intercourse. The employment of men, the fixing
of their wages, hours of labor and working conditions, the
bargaining in respect of these things -- whether carried on
separately or collectively each and all constitute intercourse for
the purposes of production, not of trade. The latter is a thing
apart from the relation of employer and employee, which, in all
producing occupations, is purely local in character. Extraction of
coal from the mine is the aim and the completed result of local
activities. Commerce in the coal mined is not brought into being
by
Page 298 U. S. 304
force of these activities, but by negotiations, agreements, and
circumstances entirely apart from production. Mining brings the
subject matter of commerce into existence. Commerce disposes of
it.
A consideration of the foregoing, and of many cases which might
be added to those already cited, renders inescapable the conclusion
that the effect of the labor provisions of the act, including those
in respect of minimum wages, wage agreements, collective
bargaining, and the Labor Board and its powers, primarily falls
upon production, and not upon commerce, and confirms the further
resulting conclusion that production is a purely local activity. It
follows that none of these essential antecedents of production
constitutes a transaction in, or forms any part of, interstate
commerce.
Schechter Corp. v. United States, supra, p.
295 U. S. 542
et seq. Everything which moves in interstate commerce has
had a local origin. Without local production somewhere, interstate
commerce, as now carried on, would practically disappear.
Nevertheless, the local character of mining, of manufacturing and
of crop growing is a fact, and remains a fact, whatever may be done
with the products.
Certain decisions of this court, superficially considered, seem
to lend support to the defense of the act now under review. But,
upon examination, they will be seen to be inapposite. Thus,
Coronado Coal Co. v. United Mine Workers, 268 U.
S. 295,
268 U. S. 310,
and kindred cases, involved conspiracies to restrain interstate
commerce in violation of the anti-trust laws. The acts of the
persons involved were local in character, but the intent was to
restrain interstate commerce, and the means employed were
calculated to carry that intent into effect. Interstate commerce
was the direct object of attack, and the restraint of such commerce
was the necessary consequence of the acts and the immediate end in
view.
Bedford Stone
Co.
Page 298 U. S. 305
v. Stone Cutters Assn., 274 U. S.
37,
274 U.S. 46.
The applicable law was concerned not with the character of the acts
or of the means employed, which might be in and of themselves
purely local, but with the intent and direct operation of those
acts and means upon interstate commerce. " The mere reduction in
the supply of an article," this court said in the
Coronado Co.
case, supra, p.
268 U. S.
310,
"to be shipped in interstate commerce by the illegal or tortious
prevention of its manufacture or production is ordinarily an
indirect and remote obstruction to that commerce. But when the
intent of those unlawfully preventing the manufacture or production
is shown to be to restrain or control the supply entering and
moving in interstate commerce, or the price of it in interstate
markets, their action is a direct violation of the Anti-Trust
Act."
Another group of cases, of which
Swift & Co. v. United
States, 196 U. S. 375, is
an example, rest upon the circumstance that the acts in question
constituted direct interferences with the "flow" of commerce among
the states. In the
Swift case, livestock was consigned and
delivered to stockyards -- not as a place of final destination,
but, as the court said in
Stafford v. Wallace,
258 U. S. 495,
258 U. S. 516,
"a throat through which the current flows." The sales which ensued
merely changed the private interest in the subject of the current,
without interfering with its continuity.
Industrial Assn. v.
United States, 268 U. S. 64,
268 U. S. 79. It
was nowhere suggested in these cases that the interstate commerce
power extended to the growth or production of the things which,
after production, entered the flow. If the court had held that the
raising of the cattle, which were involved in the
Swift
case, including the wages paid to and working conditions of the
herders and others employed in the business, could be regulated by
Congress, that decision and decisions holding similarly would be
in
Page 298 U. S. 306
point, for it is that situation, and not the one with which the
court actually dealt, which here concerns us.
The distinction suggested is illustrated by the decision in
Arkadelphia Milling Co. v. St. Lois S.W. Ry. Co.,
249 U. S. 134,
249 U. S.
150-152. That case dealt with orders of a state
commission fixing railroad rates. One of the questions considered
was whether certain shipments of rough material from the forest to
mills in the same state for manufacture, followed by the forwarding
of the finished product to points outside the state, was a
continuous movement in interstate commerce. It appeared that, when
the rough material reached the mills, it was manufactured into
various articles which were stacked or placed in kilns to dry, the
processes occupying several months. Markets for the manufactured
articles were almost entirely in other states or in foreign
countries. About 95% of the finished articles was made for outbound
shipment. When the rough material was shipped to the mills, it was
expected by the mills that this percentage of the finished articles
would be so sold and shipped outside the state. And all of them
knew and intended that this 95% of the finished product would be so
sold and shipped. This court held that the state order did not
interfere with interstate commerce, and that the
Swift
case was not in point, as it is not in point here.
The restricted field covered by the
Swift and kindred
cases is illustrated by the
Schechter case, supra, p.
295 U. S. 543.
There, the commodity in question, although shipped from another
state, had come to rest in the state of its destination, and, as
the court pointed out, was no longer in a current or flow of
interstate commerce. The
Swift doctrine was rejected as
inapposite. In the
Schechter case, the flow had ceased.
Here it had not begun. The difference is not one of substance. The
applicable principle is the same.
Page 298 U. S. 307
But § 1 (the preamble) of the act now under review declares that
all production and distribution of bituminous coal "bear upon and
directly affect its interstate commerce", and that regulation
thereof is imperative for the protection of such commerce. The
contention of the government is that the labor provisions of the
act may be sustained in that view.
That the production of every commodity intended for interstate
sale and transportation has some effect upon interstate commerce
may be, if it has not already been, freely granted, and we are
brought to the final and decisive inquiry, whether here that effect
is direct, as the "preamble" recites, or indirect. The distinction
is not formal, but substantial in the highest degree, as we pointed
out in the
Schechter case, supra, p.
295 U. S. 546,
et seq. "If the commerce clause were construed," we there
said,
"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. Indeed,
on such a theory, even the development of the State's commercial
facilities would be subject to federal control."
It was also pointed out, p.
295 U. S. 548,
that
"the distinction between direct and indirect effects of
intrastate transactions upon interstate commerce must be recognized
as a fundamental one, essential to the maintenance of our
constitutional system."
Whether the effect of a given activity or condition is direct or
indirect is not always easy to determine. The word "direct" implies
that the activity or condition invoked or blamed shall operate
proximately -- not mediately, remotely, or collaterally -- to
produce the effect. It connotes the absence of an efficient
intervening agency
Page 298 U. S. 308
or condition. And the extent of the effect bears no logical
relation to its character. The distinction between a direct and an
indirect effect turns not upon the magnitude of either the cause or
the effect, but entirely upon the manner in which the effect has
been brought about. If the production by one man of a single ton of
coal intended for interstate sale and shipment, and actually so
sold and shipped, affects interstate commerce indirectly, the
effect does not become direct by multiplying the tonnage, or
increasing the number of men employed, or adding to the expense or
complexities of the business, or by all combined. It is quite true
that rules of law are sometimes qualified by considerations of
degree, as the government argues. But the matter of degree has no
bearing upon the question here, since that question is not what is
the extent of the local activity or condition, or the extent of the
effect produced upon interstate commerce?, but what is the relation
between the activity or condition and the effect?
Much stress is put upon the evils which come from the struggle
between employers and employees over the matter of wages, working
conditions, the right of collective bargaining, etc., and the
resulting strikes, curtailment and irregularity of production and
effect on prices, and it is insisted that interstate commerce is
greatly affected thereby. But, in addition to what has just been
said, the conclusive answer is that the evils are all local evils
over which the federal government has no legislative control. The
relation of employer and employee is a local relation. At common
law, it is one of the domestic relations. The wages are paid for
the doing of local work. Working conditions are obviously local
conditions. T he employees are not engaged in or about commerce,
but exclusively in producing a commodity. And the controversies and
evils which it is the object of the
Page 298 U. S. 309
act to regulate and minimize are local controversies and evils
affecting local work undertaken to accomplish that local result.
Such effect as they may have upon commerce, however extensive it
may be, is secondary and indirect. An increase in the greatness of
the effect adds to its importance. It does not alter its
character.
The government's contentions in defense of the labor provisions
are really disposed of adversely by our decision in the
Schechter case,
supra. The only perceptible
difference between that case and this is that, in the
Schechter case, the federal power was asserted with
respect to commodities which had come to rest after their
interstate transportation, while here the case deals with
commodities at rest before interstate commerce has begun. That
difference is without significance. The federal regulatory power
ceases when interstate commercial intercourse ends; and,
correlatively, the power does not attach until interstate
commercial intercourse begins. There is no basis in law or reason
for applying different rules to the two situations. No such
distinction can be found in anything said in the
Schechter
case. On the contrary, the situations were recognized as akin. In
the opinion, at page
295 U. S. 546,
after calling attention to the fact that, if the commerce clause
could be construed to reach transactions having 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, we said: "Indeed, on such a theory, even
the development of the State's commercial facilities would be
subject to federal control." And again, after pointing out that
hours and wages have no direct relation to interstate commerce and
that, if the federal government had power to determine the wages
and hours of employees in the internal commerce of a state because
of their relation to cost and prices and their
Page 298 U. S. 310
indirect effect upon interstate commerce, we said, p.
295 U. S.
549:
"All the processes of production and distribution that enter
into cost could likewise be controlled. If the cost of doing an
intrastate business is in itself the permitted object of federal
control, the extent of the regulation of cost would be a question
of discretion, and not of power."
A reading of the entire opinion makes clear what we now declare,
that the want of power on the part of the federal government is the
same whether the wages hours of service, and working conditions,
and the bargaining about them, are related to production before
interstate commerce has begun or to sale and distribution after it
has ended.
Sixth. That the act, whatever it may be in form, in
fact, is compulsory clearly appears. We have already discussed § 3,
which imposes the excise tax as a penalty to compel "acceptance" of
the code. Section 14 provides that the United States shall purchase
no bituminous coal produced at any mine where the producer has not
complied with the provisions of the code, and that each contract
made by the United States shall contain a provision that the
contractor will buy no bituminous coal to use on, or in the
carrying out of, such contract unless the producer be a member of
the code, as certified by the coal commission. In the light of
these provisions, we come to a consideration of subdivision (g) of
Part III of § 4, dealing with "Labor Relations."
That subdivision delegates the power to fix maximum hours of
labor to a part of the producers and the miners -- namely, "the
producers of more than two-thirds of the annual national tonnage
production for the preceding calendar year" and "more than one-half
of the mine workers employed", and to producers of more than
two-thirds of the district annual tonnage during the preceding
calendar year and a majority of the miners, there is delegated the
power to fix minimum wages for the district
Page 298 U. S. 311
or group of districts. The effect, in respect of wages and
hours, is to subject the dissentient minority, either of producers
or miners or both, to the will of the stated majority, since, by
refusing to submit, the minority at once incurs the hazard of
enforcement of the drastic compulsory provisions of the act to
which we have referred. To "accept," in these circumstances, is not
to exercise a choice, but to surrender to force.
The power conferred upon the majority is, in effect, the power
to regulate the affairs of an unwilling minority. This is
legislative delegation in its most obnoxious form, for it is not
even delegation to an official or an official body, presumptively
disinterested, but to private persons whose interests may be and
often are adverse to the interests of others in the same business.
The record shows that the conditions of competition differ among
the various localities. In some, coal dealers compete among
themselves. In other localities, they also compete with the
mechanical production of electrical energy and of natural gas. Some
coal producers favor the Code; others oppose it, and the record
clearly indicates that this diversity of view arises from their
conflicting and even antagonistic interests. The difference between
producing coal and regulating its production is, of course,
fundamental. The former is a private activity; the latter is
necessarily a governmental function, since, in the very nature of
things, one person may not be entrusted with the power to regulate
the business of another, and especially of a competitor. And a
statute which attempts to confer such power undertakes an
intolerable and unconstitutional interference with personal liberty
and private property. The delegation is so clearly arbitrary, and
so clearly a denial of rights safeguarded by the due process clause
of the Fifth Amendment, that it is unnecessary to do more than
refer to decisions of this court which foreclose the question.
Schechter Corp. v. United States,
Page 298 U. S. 312
295 U.S. at p.
295 U. S. 537;
Eubank v. Richmond, 226 U. S. 137,
226 U. S. 143;
Seattle Trust Co. v. Roberge, 278 U.
S. 116,
278 U. S.
121-122.
Seventh. Finally, we are brought to the price-fixing
provisions of the code. The necessity of considering the question
of their constitutionality will depend upon whether they are
separable from the labor provisions, so that they can stand
independently. Section 15 of the act provides:
"If any provision of this Act, or the application thereof to any
person or circumstances, is held invalid, the remainder of the Act
and the application of such provisions to other persons or
circumstances shall not be affected thereby."
In the absence of such a provision, the presumption is that the
legislature intends an act to be effective as an entirety -- that
is to say, the rule is against the mutilation of a statute, and if
any provision be unconstitutional, the presumption is that the
remaining provisions fall with it. The effect of the statute is to
reverse this presumption in favor of inseparability and create the
opposite one of separability. Under the nonstatutory rule, the
burden is upon the supporter of the legislation to show the
separability of the provisions involved. Under the statutory rule,
the burden is shifted to the assailant to show their
inseparability. But, under either rule, the determination, in the
end, is reached by applying the same test -- namely, what was the
intent of the lawmakers?
Under the statutory rule, the presumption must be overcome by
considerations which establish "the clear probability that the
invalid part being eliminated, the legislature would not have been
satisfied with what remains,"
Williams v. Standard Oil
Co., 278 U. S. 235,
278 U. S. 241
et seq.; or, as stated in
Utah Power & L. Co. v.
Pfost, 286 U. S. 165,
286 U. S.
184-185, "the clear probability that the legislature
would not have been satisfied with the statute unless
Page 298 U. S. 313
it had included the invalid part." Whether the provisions of a
statute are so interwoven that, one being held invalid, the others
must fall, presents a question of statutory construction and of
legislative intent, to the determination of which the statutory
provision becomes an aid. "But it is an aid merely; not an
inexorable command."
Dorchy v. Kansas, 264 U.
S. 286,
264 U. S. 290.
The presumption in favor of separability does not authorize the
court to give the statute "an effect altogether different from that
sought by the measure viewed as a whole."
Railroad Retirement
Board v. Alton R. Co., 295 U. S. 330,
295 U. S.
362.
The statutory aid to construction in no way alters the rule
that, in order to hold one part of a statute unconstitutional and
uphold another part as separable, they must not be mutually
dependent upon one another. Perhaps a fair approach to a solution
of the problem is to suppose that, while the bill was pending in
Congress, a motion to strike out the labor provisions had
prevailed, and to inquire whether, in that event, the statute
should be so construed as to justify the conclusion that Congress,
notwithstanding, probably would not have passed the price-fixing
provisions of the code.
Section 3 of the act, which provides that no producer shall, by
accepting the code or the drawback of taxes, be estopped from
contesting the constitutionality of any provision of the code, is
thought to aid the separability clause. But the effect of that
provision is simply to permit the producer to challenge any
provision of the code despite his acceptance of the code or the
drawback. It seems not to have anything to do with the question of
separability.
With the foregoing principles in mind, let us examine the act
itself. The title of the act and the preamble demonstrate, as we
have already seen, that Congress desired to accomplish certain
general purposes therein recited. To that end, it created a
commission, with mandatory
Page 298 U. S. 314
directions to formulate into a working agreement the provisions
set forth in § 4 of the act. That being done, the result is a code.
Producers accepting and operating under the code are to be known as
code members, and § 4 specifically requires that, in order to carry
out the policy of the act, "the code shall contain the following
conditions, provisions, and obligations . . . ," which are then set
forth. No power is vested in the commission, in formulating the
code, to omit any of these conditions, provisions, or obligations.
The mandate to include them embraces all of them. Following the
requirement just quoted, and, significantly,
in the same
section (
International Textbook Co. v. Pigg,
217 U. S. 91,
217 U. S.
112-113) under appropriate headings, the price-fixing
and labor-regulating provisions are set out in great detail. These
provisions, plainly meant to operate together and not separately,
constitute the means designated to bring about the stabilization of
bituminous coal production, and thereby to regulate or affect
interstate commerce in such coal. The first clause of the title is:
"To stabilize the bituminous coal mining industry and promote its
interstate commerce."
Thus, the primary contemplation of the act is stabilization of
the industry through the regulation of labor
and the
regulation of prices; for, since both were adopted, we must
conclude that both were thought essential. The regulations of
labor, on the one hand, and prices, on the other, furnish mutual
aid and support, and their associated force -- not one or the
other, but both combined -- was deemed by Congress to be necessary
to achieve the end sought. The statutory mandate for a code upheld
by two legs at once suggests the improbability that Congress would
have assented to a code supported by only one.
This seems plain enough, for Congress must have been conscious
of the fact that elimination of the labor provisions
Page 298 U. S. 315
from the act would seriously impair, if not destroy, the force
and usefulness of the price provisions. The interdependence of
wages and prices is manifest. Approximately two-thirds of the cost
of producing a ton of coal is represented by wages. Fair prices
necessarily depend upon the cost of production, and since wages
constitute so large a proportion of the cost, prices cannot be
fixed with any proper relation to cost without taking into
consideration this major element. If one of them becomes uncertain,
uncertainty with respect to the other necessarily ensues.
So much is recognized by the code itself. The introductory
clause of Part III declares that the conditions respecting labor
relations are "To effectuate the purposes of this Act." And
subdivision (a) of Part II, quoted in the forepart of this opinion,
reads in part:
"In order to sustain the stabilization of wages, working
conditions, and maximum hours of labor, said prices shall be
established so as to yield a return per net ton for each district
in a minimum price area . . . equal as nearly as may be to the
weighted average of the total costs, per net ton. . . ."
Thus, wages, hours of labor, and working conditions are to be so
adjusted as to effectuate the purposes of the act, and prices are
to be so regulated as to stabilize wages, working conditions, and
hours of labor which have been or are to be fixed under the labor
provisions. The two are so woven together as to render the
probability plain enough that uniform prices, in the opinion of
Congress, could not be fairly fixed or effectively regulated
without also regulating these elements of labor which enter so
largely into the cost of production.
These two sets of requirements are not like a collection of
bricks, some of which may be taken away without disturbing the
others, but rather are like the interwoven threads constituting the
warp and woof of a fabric, one
Page 298 U. S. 316
set of which cannot be removed without fatal consequences to the
whole. Paraphrasing the words of this court in
Butts v.
Merchants Transportation Co., 230 U.
S. 126,
230 U. S. 133,
we inquire: what authority has this court, by construction, to
convert the manifest purpose of Congress to regulate production by
the mutual operation and interaction of fixed wages and fixed
prices into a purpose to regulate the subject by the operation of
the latter alone? Are we at liberty to say from the fact that
Congress has adopted an entire integrated system that it probably
would have enacted a doubtfully effective fraction of the system?
The words of the concurring opinion in the
Schechter case,
295 U.S. at pages
295 U. S.
554-555, are pertinent in reply.
"To take from this code the provisions as to wages and the hours
of labor is to destroy it altogether. . . . Wages and the hours of
labor are essential features of the plan, its very bone and sinew.
There is no opportunity in such circumstances for the severance of
the infected parts in the hope of saving the remainder."
The conclusion is unavoidable that the price-fixing provisions
of the code are so related to and dependent upon the labor
provisions as conditions, considerations or compensations as to
make it clearly probable that, the latter being held bad, the
former would not have been passed. The fall of the latter,
therefore, carries down with it the former.
International
Textbook Co. v. Pigg, supra, p.
217 U. S. 113;
Warren v. Charlestown, 2 Gray [Mass.] 84, 98-99.
The price-fixing provisions of the code are thus disposed of
without coming to the question of their constitutionality; but
neither this disposition of the matter nor anything we have said is
to be taken as indicating that the court is of opinion that these
provisions, if separately enacted, could be sustained.
If there be in the act provisions, other than those we have
considered, that may stand independently, the
Page 298 U. S. 317
question of their validity is left for future determination
when, if ever, that question shall be presented for
consideration.
The decrees in Nos. 636, 649, and 650 must be reversed and the
causes remanded for further consideration in conformity with this
opinion. The decree in No. 651 will be affirmed.
It is so ordered.
Separate opinion of MR. CHIEF JUSTICE HUGHES.
I agree that the stockholders were entitled to bring their
suits; that, in view of the question whether any part of the Act
could be sustained, the suits were not premature; that the
so-called tax is not a real tax, but a penalty; that the
constitutional power of the Federal Government to impose this
penalty must rest upon the commerce clause, as the Government
concedes; that production -- in this case, mining -- which precedes
commerce is not itself commerce, and that the power to regulate
commerce among the several States is not a power to regulate
industry within the State.
The power to regulate interstate commerce embraces the power to
protect that commerce from injury, whatever may be the source of
the dangers which threaten it, and to adopt any appropriate means
to that end.
Second Employers' Liability Cases,
223 U. S. 1,
223 U. S. 51.
Congress thus has adequate authority to maintain the orderly
conduct of interstate commerce and to provide for the peaceful
settlement of disputes which threaten it.
Texas & N.O. R.
Co. v. Railway Clerks, 281 U. S. 548,
281 U. S. 570.
But Congress may not use this protective authority as a pretext for
the exertion of power to regulate activities and relations within
the States which affect interstate commerce only indirectly.
Otherwise, in view of the multitude of indirect effect, Congress,
in its discretion,
Page 298 U. S. 318
could assume control of virtually all the activities of the
people, to the subversion of the fundamental principle of the
Constitution. If the people desire to give Congress the power to
regulate industries within the State, and the relations of
employers and employees in those industries, they are at liberty to
declare their will in the appropriate manner, but it is not for the
Court to amend the Constitution by judicial decision.
I also agree that subdivision (g) of Part III of the prescribed
Code is invalid upon three counts: (1) It attempts a broad
delegation of legislative power to fix hours and wages without
standards or limitation. The Government invokes the analogy of
legislation which becomes effective on the happening of a specified
event, and says that, in this case, the event is the agreement of a
certain proportion of producers and employees, whereupon the other
producers and employees become subject to legal obligations
accordingly. I think that the argument is unsound, and is pressed
to the point where the principle would be entirely destroyed. It
would remove all restrictions upon the delegation of legislative
power, as the making of laws could thus be referred to any
designated officials or private persons whose orders or agreements
would be treated as "events," with the result that they would be
invested with the force of law having penal sanctions. (2) The
provision permits a group of producers and employees, according to
their own views of expediency, to make rules as to hours and wages
for other producers and employees who were not parties to the
agreement. Such a provision, apart from the mere question of the
delegation of legislative power, is not in accord with the
requirement of due process of law which under the Fifth Amendment
dominates the regulations which Congress may impose. (3) The
provision goes beyond any proper measure of protection of
interstate
Page 298 U. S. 319
commerce, and attempts a broad regulation of industry within the
State.
But that is not the whole case. The Act also provides for the
regulation of the prices of bituminous coal sold in interstate
commerce, and prohibits unfair methods of competition in interstate
commerce. Undoubtedly, transactions in carrying on interstate
commerce are subject to the federal power to regulate that
commerce, and the control of charges and the protection of fair
competition in that commerce are familiar illustrations of the
exercise of the power, as the Interstate Commerce Act, the Packers
and Stockyards Act, and the Anti-Trust Acts abundantly show. The
Court has repeatedly stated that the power to regulate interstate
commerce among the several States is supreme and plenary.
Minnesota Rate Cases, 230 U. S. 352,
230 U. S. 398.
It is
"complete in itself, and may be exercised to its utmost extent,
and acknowledges no limitations other than are prescribed in the
Constitution."
Gibbons v.
Ogden, 9 Wheat. 1,
22 U. S. 196. We
are not at liberty to deny to the Congress, with respect to
interstate commerce, a power commensurate with that enjoyed by the
States in the regulation of their internal commerce.
See Nebbia
v. New York, 291 U. S. 502.
Whether the policy of fixing prices of commodities sold in
interstate commerce is a sound policy is not for our consideration.
The question of that policy, and of its particular applications, is
for Congress. The exercise of the power of regulation is subject to
the constitutional restriction of the due process clause, and if,
in fixing rates, prices or conditions of competition, that
requirement is transgressed, the judicial power may be invoked to
the end that the constitutional limitation may be maintained.
Interstate Commerce Comm'n v. Union Pacific R. Co.,
222 U. S. 541,
222 U. S. 547;
St. Joseph Stock Yards Co. v. United States, ante, p.
298 U. S. 38.
Page 298 U. S. 320
In the legislation before us, Congress has set up elaborate
machinery for the fixing of prices of bituminous coal sold in
interstate commerce. That provision is attacked
in limine.
Prices have not yet been fixed. If fixed, they may not be
contested. If contested, the Act provides for review of the
administrative ruling. If, in fixing prices, due process is
violated by arbitrary, capricious or confiscatory action, judicial
remedy is available. If an attempt is made to fix prices for sales
in intrastate commerce, that attempt will also be subject to attack
by appropriate action. In that relation, it should be noted that,
in the Carter cases, the court below found that substantially all
the coal mined by the Carter Coal Company is sold f.o.b. mines, and
is transported into States other than those in which it is produced
for the purpose of filling orders obtained from purchasers in such
States. Such transactions are in interstate commerce.
Savage v.
Jones, 225 U. S. 501,
225 U. S. 520.
The court below also found that "the interstate distribution and
sale and the intrastate distribution and sale" of the coal are so
"intimately and inextricably connected" that
"the regulation of interstate transactions of distribution and
sale cannot be accomplished effectively without discrimination
against interstate commerce unless transactions of intrastate
distribution and sale be regulated."
Substantially the same situation is disclosed in the Kentucky
cases. In that relation, the Government invokes the analogy of
transportation rates.
Shreveport Case, 234 U.
S. 342;
Wisconsin Railroad Comm'n v. Chicago, B.
& Q. R. Co., 257 U. S. 563. The
question will be the subject of consideration when it arises in any
particular application of the Act.
Upon what ground, then, can it be said that this plan for the
regulation of transactions in interstate commerce in coal is beyond
the constitutional power of Congress? The Court reaches that
conclusion in the view that the
Page 298 U. S. 321
invalidity of the labor provisions requires us to condemn the
Act in its entirety. I am unable to concur in that opinion. I think
that the express provisions of the Act preclude such a finding of
inseparability.
This is admittedly a question of statutory construction, and
hence we must search for the intent of Congress. And, in seeking
that intent, we should not fail to give full weight to what
Congress itself has said upon the very point. The Act provides (§
15):
"If any provision of this Act, or the application thereof to any
person or circumstances, is held invalid, the remainder of the Act
and the application of such provisions to other persons or
circumstances shall not be affected thereby.'"
That is a flat declaration against treating the provisions of
the Act as inseparable. It is a declaration which Congress was
competent to make. It is a declaration which reverses the
presumption of indivisibility and creates an opposite presumption.
Utah Power & Light Co. v. Pfost, 286 U.
S. 165,
286 U. S.
184.
The above-quoted provision does not stand alone. Congress was at
pains to make a declaration of similar import with respect to the
provisions of the Code (§ 3):
"No producer shall by reason of his acceptance of the code
provided for in section 4 or of the drawback of taxes provided in
section 3 of this Act be held to be precluded or estopped from
contesting the constitutionality of any provision of said code, or
its validity as applicable to such producer."
This provision evidently contemplates, when read with the one
first quoted, that a stipulation of the Code may be found to be
unconstitutional, and yet that its invalidity shall not be regarded
as affecting the obligations attaching to the remainder.
I do not think that the question of separability should be
determined by trying to imagine what Congress would
Page 298 U. S. 322
have done if certain provisions found to be invalid were
excised. That, if taken broadly, would lead us into a realm of pure
speculation. Who can tell, amid the host of divisive influences
playing upon the legislative body, what its reaction would have
been to a particular excision required by a finding of invalidity?
The question does not call for speculation of that sort, but rather
for an inquiry whether the provisions are inseparable by virtue of
inherent character. That is, when Congress states that the
provisions of the Act are not inseparable and that the invalidity
of any provision shall not affect others, we should not hold that
the provisions are inseparable unless their nature, by reason of an
inextricable tie, demands that conclusion.
All that is said in the preamble of the Act, in the directions
to the Commission which the Act creates, and in the stipulations of
the Code, is subject to the explicit direction of Congress that the
provisions of the statute shall not be treated as forming an
indivisible unit. The fact that the various requirements furnish to
each other mutual aid and support does not establish
indivisibility. The purpose of Congress, plainly expressed, was
that, if a part of that aid were lost, the whole should not be
lost. Congress desired that the Act and Code should be operative so
far as they met the constitutional test. Thus, we are brought, as I
have said, to the question whether, despite this purpose of
Congress, we must treat the marketing provisions and the labor
provisions as inextricably tied together because of their nature. I
find no such tie. The labor provisions are themselves separated and
placed in a separate part (Part III) of the Code. It seems quite
clear that the validity of the entire Act cannot depend upon the
provisions as to hours and wages in paragraph (g) of Part III. For
what was contemplated by that paragraph is manifestly independent
of
Page 298 U. S. 323
the other machinery of the Act, as it cannot become effective
unless the specified proportion of producers and employees reach an
agreement as to particular wages and hours. And the provision for
collective bargaining in paragraphs (a) and (b) of Part III is
apparently made separable from the Code itself by § 9 of the Act,
providing, in substance, that the employees of all producers shall
have the right of collective bargaining even when producers do not
accept or maintain the Code.
The marketing provisions (Part II) of the Code naturally form a
separate category. The interdependence of wages and prices is no
clearer in the coal business than in transportation. But the broad
regulation of rates in order to stabilize transportation conditions
has not carried with it the necessity of fixing wages. Again, the
requirement, in paragraph (a) of Part II, that district boards
shall establish prices so as to yield a prescribed "return per net
ton" for each district in a minimum price area in order "to sustain
the stabilization of wages, working conditions and maximum hours of
labor" does not link the marketing provisions to the labor
provisions by an unbreakable bond. Congress evidently desired
stabilization through both the provisions relating to marketing and
those relating to labor, but the setting up of the two sorts of
requirements did not make the one dependent upon the validity of
the other. It is apparent that they are not so interwoven that they
cannot have separate operation and effect. The marketing provisions
in relation to interstate commerce can be carried out as provided
in Part II without regard to the labor provisions contained in Part
III. That fact, in the light of the congressional declaration of
separability, should be considered of controlling importance.
In this view, the Act, and the Code for which it provides, may
be sustained in relation to the provisions for
Page 298 U. S. 324
marketing in interstate commerce, and the decisions of the
courts below, so far as they accomplish that result, should be
affirmed.
MR. JUSTICE CARDOZO (dissenting in Nos. 636, 649 and 650, and in
No. 651 concurring in the result).
My conclusions, compendiously stated, are these:
(a) Part II of the statute sets up a valid system of
price-fixing as applied to transactions in interstate commerce and
to those in intrastate commerce where interstate commerce is
directly or intimately affected. The prevailing opinion holds
nothing to the contrary.
(b) Part II, with its system of price-fixing, is separable from
Part III, which contains the provisions as to labor considered and
condemned in the opinion of the court.
(c) Part II being valid, the complainants are under a duty to
come in under the code, and are subject to a penalty if they
persist in a refusal.
(d) The suits are premature insofar as they seek a judicial
declaration as to the validity or invalidity of the regulations in
respect of labor embodied in Part III. No opinion is expressed,
either directly or by implication, as to those aspects of the case.
It will be time enough to consider them when there is the threat,
or even the possibility, of imminent enforcement. If that time
shall arrive, protection will be given by clear provisions of the
statute (§ 3) against any adverse inference flowing from delay or
acquiescence.
(e) The suits are not premature to the extent that they are
intended to avert a present wrong, though the wrong upon analysis
will be found to be unreal.
The complainants are asking for a decree to restrain the
enforcement of the statute in all or any of its provisions on the
ground that it is a void enactment, and void in all its parts. If
some of its parts are valid and are separable from others that are
or may be void, and if the parts upheld and separated are
sufficient to sustain a
Page 298 U. S. 325
regulatory penalty, the injunction may not issue, and hence the
suits must fail. There is no need when that conclusion has been
reached to stir a step beyond. Of the provisions not considered,
some may never take effect, at least in the absence of future
happenings which are still uncertain and contingent. Some may
operate in one way as to one group and in another way as to others,
according to particular conditions as yet unknown and unknowable. A
decision in advance as to the operation and validity of separable
provisions in varying contingencies is premature, and hence
unwise.
"The court will not 'anticipate a question of constitutional law
in advance of the necessity of deciding it.'
Steamship Co. v.
Emigration Commissioners, 113 U. S. 33,
113 U. S.
39;
Abrams v. Van Schaick, 293 U. S.
188;
Wilshire Oil Co. v. United States,
295 U. S.
100. 'It is not the habit of the Court to decide
questions of a constitutional nature unless absolutely necessary to
a decision of the case.'
Burton v. United States,
196 U. S.
283,
196 U. S. 295."
Per Brandeis, J., in
Ashwander v. Tennessee Valley
Authority, 297 U. S. 288,
297 U. S. 346.
The moment we perceive that there are valid and separable portions,
broad enough to lay the basis for a regulatory penalty, inquiry
should halt. The complainants must conform to whatever is upheld,
and, as to parts excluded from the decision, especially if the
parts are not presently effective, must make their protest in the
future when the occasion or the need arises.
First: I am satisfied that the Act is within the power
of the central government insofar as it provides for minimum and
maximum prices upon sales of bituminous coal in the transactions of
interstate commerce and in those of intrastate commerce where
interstate commerce is directly or intimately affected. Whether it
is valid also in other provisions that have been considered and
condemned in the opinion of the court I do not find it necessary to
determine at this time. Silence must not be taken as importing
acquiescence. Much would have
Page 298 U. S. 326
to be written if the subject, even as thus restricted, were to
be explored through all its implications, historical and economic
as well as strictly legal. The fact that the prevailing opinion
leaves the price provisions open for consideration in the future
makes it appropriate to forego a fullness of elaboration that might
otherwise be necessary. As a system of price-fixing, the Act is
challenged upon three grounds: (1) because the governance of prices
is not within the commerce clause; (2) because it is a denial of
due process forbidden by the Fifth Amendment, and (3) because the
standards for administrative action are indefinite, with the result
that there has been an unlawful delegation of legislative
power.
(1) With reference to the first objection, the obvious and
sufficient answer is, so far as the Act is directed to interstate
transactions, that sales made in such conditions constitute
interstate commerce, and do not merely "affect" it.
Dahnke-Walker Milling Co. v. Bondurant, 257 U.
S. 282,
257 U. S. 290;
Flanagan v. Federal Coal Co., 267 U.
S. 222,
267 U. S. 225;
Lemke v. Farmers Crain Co., 258 U. S.
50,
258 U. S. 60;
Public Utilities Comm'n v. Attleboro Steam & Electric
Co., 273 U. S. 83,
273 U. S. 90;
Federal Trade Comm'n v. Pacific States Paper Trade Assn.,
273 U. S. 52,
273 U. S. 64. To
regulate the price for such transactions is to regulate commerce
itself, and not alone its antecedent conditions or its ultimate
consequences. The very act of sale is limited and governed. Prices
in interstate transactions may not be regulated by the states.
Baldwin v. Seelig, 294 U. S. 511.
They must therefore be subject to the power of the nation unless
they are to be withdrawn altogether from governmental supervision.
Cf. Head Money Cases, 112 U. S. 580,
112 U. S. 593;
Story, Commentaries on the Constitution, § 1082. If such a vacuum
were permitted, many a public evil incidental to interstate
transactions would be left without a remedy. This does not mean, of
course, that prices may be fixed for arbitrary reasons or in an
arbitrary way. The commerce power of the nation is
Page 298 U. S. 327
subject to the requirement of due process like the police power
of the states.
Hamilton v. Kentucky Distilleries Co.,
251 U. S. 146,
251 U. S. 156;
cf. Brooks v. United States, 267 U.
S. 432,
267 U. S. 436,
267 U. S. 437;
Nebbia v. New York, 291 U. S. 502,
291 U. S. 524.
Heed must be given to similar considerations of social benefit or
detriment in marking the division between reason and oppression.
The evidence is overwhelming that Congress did not ignore those
considerations in the adoption of this Act. What is to be said in
that regard may conveniently be postponed to the part of the
opinion dealing with the Fifth Amendment.
Regulation of prices being an exercise of the commerce power in
respect of interstate transactions, the question remains whether it
comes within that power as applied to intrastate sales where
interstate prices are directly or intimately affected. Mining and
agriculture and manufacture are not interstate commerce considered
by themselves, yet their relation to that commerce may be such
that, for the protection of the one, there is need to regulate the
other.
Schechter Poultry Corp. v. United States,
295 U. S. 495,
295 U. S. 544,
295 U. S. 545,
295 U. S. 546.
Sometimes it is said that the relation must be "direct" to bring
that power into play. In many circumstances, such a description
will be sufficiently precise to meet the needs of the occasion. But
a great principle of constitutional law is not susceptible of
comprehensive statement in an adjective. The underlying thought is
merely this -- that "the law is not indifferent to considerations
of degree."
Schechter Poultry Corp. v. United States,
supra, concurring opinion, p.
295 U. S. 554.
It cannot be indifferent to them without an expansion of the
commerce clause that would absorb or imperil the reserved powers of
the states. At times, as in the case cited, the waves of causation
will have radiated so far that their undulatory motion, if
discernible at all, will be too faint or obscure, too broken by
cross-currents, to be heeded by the law. In such circumstances,
Page 298 U. S. 328
the holding is not directed at prices or wages considered in the
abstract, but at prices or wages in particular conditions. The
relation may be tenuous, or the opposite, according to the facts.
Always, the setting of the facts is to be viewed if one would know
the closeness of the tie. Perhaps, if one group of adjectives is to
be chosen in preference to another, "intimate" and "remote" will be
found to be as good as any. At all events, "direct" and "indirect,"
even if accepted as sufficient, must not be read too narrowly.
Cf. Stone, J., in
Di Santo v. Pennsylvania.,
273 U. S. 34,
273 U. S. 44. A
survey of the cases shows that the words have been interpreted with
suppleness of adaptation and flexibility of meaning. The power is
as broad as the need that evokes it.
One of the most common and typical instances of a relation
characterized as direct has been that between interstate and
intrastate rates for carriers by rail where the local rates are so
low as to divert business unreasonably from interstate competitors.
In such circumstances, Congress has the power to protect the
business of its carriers against disintegrating encroachments.
Shreveport Case, 234 U. S. 342,
234 U. S. 351,
352;
Wisconsin Railroad Comm'n v. Chicago, B. & Q. R.
Co., 257 U. S. 563,
257 U. S. 588;
United States v. Louisiana, 290 U. S.
70,
290 U. S. 75;
Florida v. United States, 292 U. S.
1. To be sure, the relation even then may be
characterized as indirect if one is nice or over-literal in the
choice of words. Strictly speaking, the intrastate rates have a
primary effect upon the intrastate traffic, and not upon any other,
though the repercussions of the competitive system may lead to
secondary consequences affecting interstate traffic also.
Atlantic Coast Line R. Co. v. Florida, 295 U.
S. 301,
295 U. S. 306.
What the cases really mean is that the causal relation in such
circumstances is so close and intimate and obvious as to permit it
to be called direct without subjecting the word to an unfair or
excessive strain. There is a like immediacy
Page 298 U. S. 329
here. Within rulings the most orthodox, the prices for
intrastate sales of coal have so inescapable a relation to those
for interstate sales that a system of regulation for transactions
of the one class is necessary to give adequate protection to the
system of regulation adopted for the other. The argument is
strongly pressed by intervening counsel that this may not be true
in all communities or in exceptional conditions. If so, the
operators unlawfully affected may show that the Act, to that
extent, is invalid as to them. Such partial invalidity is plainly
an insufficient basis for a declaration that the Act is invalid as
a whole.
Dahnke-Walker Co. v. Bondurant, supra, p.
257 U. S. 289;
DuPont v. Commissioner, 289 U. S. 685,
289 U. S.
688.
What has been said in this regard is said with added certitude
when complainants' business is considered in the light of the
statistics exhibited in the several records. In No. 636, the Carter
case, the complainant has admitted that "substantially all" (over
97 1/2%) of the sales of the Carter Company are made in interstate
commerce. In No. 649 the percentages of intrastate sales are, for
one of the complaining companies, twenty-five percent, for another,
one percent, and for most of the others, two percent or four. The
Carter Company has its mines in West Virginia; the mines of the
other companies are located in Kentucky. In each of those states,
moreover, coal from other regions is purchased in large quantities,
and is thus brought into competition with the coal locally
produced. Plainly, it is impossible to say, either from the statute
itself or from any figures laid before us, that interstate sales
will not be prejudicially affected in West Virginia and Kentucky if
intrastate prices are maintained on a lower level. If it be assumed
for present purposes that there are other states or regions where
the effect may be different, the complainants are not the champions
of any rights except their own.
Hatch
v.
Page 298 U. S. 330
Reardon, 204 U. S. 152,
204 U. S. 160,
161;
Premier-Pabst Sales Co. v. Grosscup, ante, p.
298 U. S. 226.
(2) The commerce clause being accepted as a sufficient source of
power, the next inquiry must be whether the power has been
exercised consistently with the Fifth Amendment. In the pursuit of
that inquiry,
Nebbia v. New York, 291 U.
S. 502, lays down the applicable principle. There, a
statute of New York prescribing a minimum price for milk was upheld
against the objection that price-fixing was forbidden by the
Fourteenth Amendment. [
Footnote
1] We found it a sufficient reason to uphold the challenged
system that
"the conditions or practices in an industry make unrestricted
competition an inadequate safeguard of the consumer's interest,
produce waste harmful to the public, threaten ultimately to cut off
the supply of a commodity needed by the public, or portend the
destruction of the industry itself."
291 U.S. at p.
291 U. S.
538.
All this may be said, and with equal, if not greater force, of
the conditions and practices in the bituminous coal industry, not
only at the enactment of this statute in August, 1935, but for many
years before. Overproduction was at a point where free competition
had been degraded into anarchy. Prices had been cut so low that
profit had become impossible for all except the lucky
Page 298 U. S. 331
handful. Wages came down along with prices and with profits.
There were strikes, at times nationwide in extent, at other times
spreading over broad areas and many mines, with the accompaniment
of violence and bloodshed and misery and bitter feeling. The sordid
tale is unfolded in many a document and treatise. During the
twenty-three years between 1913 and 1935, there were nineteen
investigations or hearings by Congress or by specially created
commissions with reference to conditions in the coal mines.
[
Footnote 2] The hope of
betterment was faint unless the industry could be subjected to the
compulsion of a code. In the weeks immediately preceding the
passage of this Act, the country was threatened once more with a
strike of ominous proportions. The plight of the industry was not
merely a menace to owners and to mine workers; it was and had long
been a menace to the public, deeply concerned in a steady and
uniform supply of a fuel so vital to the national economy.
Congress was not condemned to inaction in the face of price wars
and wage wars so pregnant with disaster. Commerce had been choked
and burdened; its normal flow had been diverted from one state to
another; there had been bankruptcy and waste and ruin alike for
capital and for labor. The liberty protected by the Fifth Amendment
does not include the right to persist in this anarchic riot.
"When industry is grievously hurt, when producing concerns fail,
when unemployment mounts and communities dependent upon profitable
production are prostrated, the wells of commerce go dry."
Appalachian Coals, Inc. v. United States, 288 U.
S. 344,
288 U. S. 372.
The free competition so often figured as a social good imports
order and moderation and a decent regard for the welfare of the
group.
Cf. 297 U. S. Inc.
v.
Page 298 U. S. 332
United States, 297 U. S. 553.
There is testimony in these records, testimony even by the
assailants of the statute, that only through a system of regulated
prices can the industry be stabilized and set upon the road of
orderly and peaceful progress. [
Footnote 3] If further facts are looked for, they are
narrated in the findings, as well as in congressional reports and a
mass of public records. [
Footnote
4] After making every allowance for difference of opinion as to
the most efficient cure, the student of the subject is confronted
with the indisputable truth that there were ills to be corrected,
and ills that had a direct relation to the maintenance of commerce
among the states without friction or diversion. An evil existing,
and also the power to correct it, the lawmakers were at liberty to
use their own discretion in the selection of the means. [
Footnote 5]
(3) Finally, and in answer to the third objection to the statute
in its price-fixing provisions, there has been no excessive
delegation of legislative power. The prices
Page 298 U. S. 333
to be fixed by the District Boards and the Commission must
conform to the following standards: they must be just and
equitable; they must take account of the weighted average cost of
production for each minimum price area; they must not be unduly
prejudicial or preferential as between districts or as between
producers within a district, and they must reflect as nearly as
possible the relative market value of the various kinds, qualities
and sizes of coal, at points of delivery in each common consuming
market area; to the end of affording the producers in the several
districts substantially the same opportunity to dispose of their
coals on a competitive basis as has heretofore existed. The minimum
for any district shall yield a return, per net ton, not less than
the weighted average of the total costs per net ton of the tonnage
of the minimum price area; the maximum for any mine, if a maximum
is fixed, shall yield a return not less than cost plus a reasonable
profit. Reasonable prices can as easily be ascertained for coal as
for the carriage of passengers or property under the Interstate
Commerce Act, or for the services of brokers in the stockyards
(
Tagg Bros. & Moorhead v. United States, 280 U.
S. 420), or for the use of dwellings under the Emergency
Rent Laws (
Block v. Hirsh, 256 U.
S. 135,
256 U. S. 157;
Marcus Brown Co. v. Feldman, 256 U.
S. 170;
Levy Leasing Co. v. Siegel,
258 U. S. 242),
adopted at a time of excessive scarcity, when the laws of supply
and demand no longer gave a measure for the ascertainment of the
reasonable. The standards established by this Act are quite as
definite as others that have had the approval of this court.
New York Central Securities Corp. v. United States,
287 U. S. 12,
287 U. S. 24;
Federal Radio Comm'n v. Nelson Bros. Bond & Mortgage
Co., 289 U. S. 266,
289 U. S. 286;
Tagg Bros. & Moorhead v. United States, supra; Mabler v.
Eby, 264 U. S. 32.
Certainly a bench of judges, not experts in the coal business,
cannot
Page 298 U. S. 334
say with assurance that members of a commission will be unable,
when advised and informed by others experienced in the industry, to
make the standards workable, or to overcome, through the
development of an administrative technique, many obstacles and
difficulties that might be baffling or confusing to inexperience or
ignorance.
The price provisions of the Act are contained in a chapter known
as Part II. The final subdivisions of that part enumerate certain
forms of conduct which are denounced as "unfair methods of
competition." For the most part, the prohibitions are ancillary to
the fixing of a minimum price. The power to fix a price carries
with it the subsidiary power to forbid and prevent evasion.
Cf.
United States v. Ferger, 250 U. S. 199. The
few prohibitions that may be viewed as separate are directed to
situations that may never be realized in practice. None of the
complainants threatens or expresses the desire to do these
forbidden acts. As to those phases of the statute, the suits are
premature.
Second: the next inquiry must be whether Part I of the
statute, which creates the administrative agencies, and Part II,
which has to do in the main with the price-fixing machinery as well
as preliminary sections levying a tax or penalty, are separable
from Part III, which deals with labor relations in the industry,
with the result that what is earlier would stand if what is later
were to fall.
The statute prescribes the rule by which construction shall be
governed.
"If any provision of this Act, or the application thereof to any
person or circumstances, is held invalid, the remainder of the Act
and the application of such provisions to other persons or
circumstances shall not be affected thereby."
§ 15. The rule is not read as an inexorable mandate.
Dorchy
v. Kansas, 264 U. S. 286,
264 U. S. 290;
Utah Power & Light Co. v.
Pfost, 286
Page 298 U. S. 335
U.S. 165,
286 U. S. 184;
Railroad Retirement Board v. Alton R. Co., 295 U.
S. 330,
295 U. S. 362.
It creates a "presumption of divisibility," which is not applied
mechanically or in a manner to frustrate the intention of the
lawmakers. Even so, the burden is on the litigant who would escape
its operation. Here, the probabilities of intention are far from
overcoming the force of the presumption. They fortify and confirm
it. A confirmatory token is the formal division of the statute into
"Parts" separately numbered. Part III which deals with labor, is
physically separate from everything that goes before it. But, more
convincing than the evidences of form and structure, the division
into chapters and sections and paragraphs, each with its proper
subject matter, are the evidences of plan and function. Part II,
which deals with prices, is to take effect at once, or as soon as
the administrative agencies have finished their administrative
work. Part III, in some of its most significant provisions, the
section or subdivision in respect of wages and the hours of labor,
may never take effect at all. This is clear beyond the need for
argument from the mere reading of the statute. The maximum hours of
labor may be fixed by agreement between the producers of more than
two thirds of the annual national tonnage production for the
preceding calendar year and the representatives of more than one
half the mine workers. Wages may be fixed by agreement or
agreements negotiated by collective bargaining in any district or
group of two or more districts between representatives of producers
of more than two thirds of the annual tonnage production of such
districts or each of such districts in a contracting group during
the preceding calendar year, and representatives of the majority of
the mine workers therein. It is possible that none of these
agreements as to hours and wages will ever be made. If made, they
may not be completed for months, or even years. In the meantime,
however, the provisions
Page 298 U. S. 336
of Part II will be continuously operative, and will determine
prices in the industry. Plainly, then, there was no intention on
the part of the framers of the statute that prices should not be
fixed if the provisions for wages or hours of labor were found to
be invalid.
Undoubtedly the rules as to labor relations are important
provisions of the statute. Undoubtedly the lawmakers were anxious
that provisions so important should have the force of law. But they
announced with all the directness possible for words that they
would keep what they could have if they could not have the whole.
Stabilizing prices would go a long way toward stabilizing labor
relations by giving the producers capacity to pay a living wage.
[
Footnote 6] To hold otherwise
is to ignore the whole history of mining. All in vain have official
committees
Page 298 U. S. 337
inquired and reported in thousands of printed pages if this
lesson has been lost. In the face of that history, the court is now
holding that Congress would have been unwilling to give the force
of law to the provisions of Part II, which were to take effect at
once, if it could not have Part III, which, in the absence of
agreement between the employers and the miners, would never take
effect at all. Indeed, the prevailing opinion goes so far, it
seems, as to insist that if the least provision of the statute in
any of the three chapters is to be set aside as void, the whole
statute must go down for the reason that everything, from end to
end, or everything, at all events, beginning with § 4, is part of
the Bituminous Coal Code, to be swallowed at a single draught,
without power in the commission, or even in the court, to abate a
jot or tittle. One can only wonder what is left of the "presumption
of divisibility" which the lawmakers were at pains to establish
later on. Codes under the National Recovery Act are not a genuine
analogy. The Recovery Act made it mandatory (§ 7a) that every code
should contain provisions as to labor, including wages and hours,
and left everything else to the discretion of the codifiers. Wages
and hours in such circumstances were properly described as
"essential features of the plan, its very bone and sinew"
(
Schechter Poultry Corp. v. United States, supra,
concurring opinion, p.
295 U. S. 555),
which, taken from the body of a code, would cause it to collapse.
Here, on the face of the statute, the price provisions of one Part
and the labor provisions of the other (the two to be administered
by separate agencies) are made of equal rank.
What is true of the sections and subdivisions that deal with
wages and the hours of labor is true also of the other provisions
of the same chapter of the Act. Employees are to have the right to
organize and bargain collectively through representatives of their
own choosing,
Page 298 U. S. 338
and shall be free from interference, restraint or coercion of
employers, or their agents, in the designation of such
representatives, or in self-organization or in other concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, and no employee and no one seeking employment
shall be required as a condition of employment to join any company
union. No threat has been made by anyone to do violence to the
enjoyment of these immunities and privileges. No attempt to violate
them may be made by the complainants, or indeed by anyone else in
the term of four years during which the Act is to remain in force.
By another subdivision, employees are to have the right of
peaceable assemblage for the discussion of the principles of
collective bargaining, shall be entitled to select their own
checkweighman to inspect the weighing or measuring of coal, and
shall not be required, as a condition of employment, to live in
company houses or to trade at the store of the employer. None of
these privileges or immunities has been threatened with impairment.
No attempt to impair them may ever be made by anyone.
Analysis of the statute thus leads to the conclusion that the
provisions of Part III, so far as summarized, are separable from
Parts I and II, and that any declaration in respect of their
validity or invalidity under the commerce clause of the
Constitution or under any other section will anticipate a
controversy that may never become real. This being so, the proper
course is to withhold an expression of opinion until expression
becomes necessary. A different situation would be here if a portion
of the statute, and a portion sufficient to uphold the regulatory
penalty, did not appear to be valid. If the whole statute were a
nullity, the complainants would be at liberty to stay the hand of
the tax gatherer threatening to collect the penalty, for collection
in such circumstances would be a trespass, an illegal and forbidden
act.
Child
Labor
Page 298 U. S. 339
Tax Case, 259 U. S. 20;
Hill v. Wallace, 259 U. S. 44,
259 U. S. 62;
Terrace v. Thompson, 263 U. S. 197,
263 U. S. 215;
Pierce v. Society of Sisters, 268 U.
S. 510,
268 U. S. 536. It
would be no answer to say that the complainants might avert the
penalty by declaring themselves code members ( § 3) and fighting
the statute afterwards. In the circumstances supposed, there would
be no power in the national government to put that constraint upon
them. The Act by hypothesis, being void in all its parts as a
regulatory measure, the complainants might stand their ground,
refuse to sign anything, and resist the onslaught of the collector
as the aggression of a trespasser. But the case, as it comes to us,
assumes a different posture, a posture inconsistent with the
commission of a trespass, either present or prospective. The
hypothesis of complete invalidity has been shown to be unreal. The
price provisions being valid, the complainants were under a duty to
come in under the code whether the provisions as to labor are valid
or invalid, and their failure to come in has exposed them to a
penalty lawfully imposed. They are thus in no position to restrain
the acts of the collector, or to procure a judgment defeating the
operation of the statute, whatever may be the fate hereafter of
particular provisions not presently enforceable. The right to an
injunction failing, the suits must be dismissed. Nothing more is
needful -- no pronouncement more elaborate -- for a disposition of
the controversy.
A last assault upon the statute is still to be repulsed. The
complainants take the ground that the Act may not coerce them
through the imposition of a penalty into a seeming recognition or
acceptance of the code, if any of the code provisions are invalid,
however separable from others. I cannot yield assent to a position
so extreme. It is one thing to impose a penalty for refusing to
come in under a code that is void altogether. It is a very
different thing if a penalty is imposed for
Page 298 U. S. 340
refusing to come in under a code invalid at the utmost in
separable provisions, not immediated operative, the right to
contest them being explicitly reserved. The penalty in those
circumstances is adopted as a lawful sanction to compel submission
to a statute having the quality of law. A sanction of that type is
the one in controversy here. So far as the provisions for
collective bargaining and freedom from coercion are concerned, the
same duties are imposed upon employers by § 9 of the statute
whether they come in under the code or not. So far as code members
are subject to regulation as to wages and hours of labor, the force
of the complainants' argument is destroyed when reference is made
to those provisions of the statute in which the effect of
recognition and acceptance is explained and limited. By § 3 of the
Act,
"No producer shall by reason of his acceptance of the code
provided for in section 4 or of the drawback of taxes provided for
in section 3 of this Act be held to be precluded or estopped from
contesting the constitutionality of any provision of said code, or
its validity as applicable to said producer."
These provisions are reinforced and made more definite by §§
5(c) and 6(b), which, so far as presently material, are quoted in
the margin. [
Footnote 7] For
the subscriber to the code who is
Page 298 U. S. 341
doubtful as to the validity of some of its requirements, there
is thus complete protection. If this might otherwise be uncertain,
it would be made clear by our decision in
Ex parte Young,
209 U. S. 123,
which was applied in the court below at the instance and for the
benefit of one of these complainants to give relief against
penalties accruing during suit.
Helvering v. Carter, No.
651. Finally, the adequacy of the remedial devices is made even
more apparent when one remembers that the attack upon the statute
in its labor regulations assumes the existence of a controversy
that may never become actual. The failure to agree upon a wage
scale or upon maximum hours of daily or weekly labor may make the
statutory scheme abortive in the very phases and aspects that the
court has chosen to condemn. What the code will provide as to wages
and hours of labor, or whether it will provide anything, is still
in the domain of prophecy. The opinion of the court begins at the
wrong end. To adopt a homely form of words, the complainants have
been crying before they are really hurt.
My vote is for affirmance.
I am authorized to state that MR. JUSTICE BRANDEIS and MR.
JUSTICE STONE join in this opinion.
[
Footnote 1]
Hamilton v. Kentucky Distilleries Co., 251 U.
S. 146,
251 U. S.
156:
"The war power of the United States, like its other powers and
like the police power of the States, is subject to applicable
constitutional limitations (
Ex parte Milligan, 4 Wall. 2,
71 U. S. 121-127;
Monongahela Navigation Co. v. United States, 148 U. S.
312,
148 U. S. 336;
United
States v. Joint Traffic Assn., 171 U. S.
505,
171 U. S. 571;
McCray v.
United States, 195 U. S. 27,
195 U. S.
61;
United States v. Cress, 243 U. S.
316,
243 U. S. 326); but the
Fifth Amendment imposes in this respect no greater limitation upon
the national power than does the Fourteenth Amendment upon state
power.
In re Kemmler, 136 U. S. 436,
136 U. S.
448;
Carroll v. Greenwich Ins. Co.,
199 U. S.
401,
199 U. S. 410."
Cf. Brooks v. United States, 267 U.
S. 432,
267 U. S. 436,
267 U. S. 437;
Nebbia v. New York, 291 U. S. 502,
291 U. S.
524.
[
Footnote 2]
The dates and titles are given in the brief for the Government
in No. 636, at pp. 118.
[
Footnote 3]
See also the Report of the Fifteenth Annual Meeting of
the National Coal Association, October 26-27, 1934, and the
statement of the resolutions adopted at the Sixteenth Annual
Meeting as reported at hearings preliminary to the passage of this
Act. Hearings before a Subcommittee of the Committee on Ways and
Means, House of Representatives, 74th Congress, 1st Session, on
H.R. 8479, pp. 20, 152.
[
Footnote 4]
There is significance in the many bills proposed to the Congress
after painstaking reports during successive national
administrations with a view to the regulation of the coal industry
by Congressional action. S. 2557, October 4, 1921, 67th Cong., 1st
Sess.; S. 3147, February 13, 1922, 67th Cong., 2nd Sess.; H.R.
9222, February 11, 1926, 69th Cong., 1st Sess.; H.R. 11898, May 4,
1926 (S. 4177), 69th Cong., 1st Sess.; S. 2935, January 7, 1932
(H.R. 7536), 72nd Cong., 1st Sess.; also, same session, H.R. 12916
and 9924.
[
Footnote 5]
"Price control, like any other form of discrimination, is
unconstitutional only if arbitrary, discriminatory or demonstrably
irrelevant to the policy the legislature is free to adopt, and
hence an unnecessary and unwarranted interference with individual
liberty."
Nebbia v. New York, supra, at p.
291 U. S.
538.
[
Footnote 6]
At a hearing before a Subcommittee of the Committee on Ways and
Means, House of Representatives, 74th Congress, First Session, on
H.R. 8479, counsel for the United Mine Workers of America, who had
cooperated in the drafting of the Act, said (p. 35):
"We have, as can be well understood, a provision of this code
dealing with labor relations at the mines. We think that is
justified; we think it is impossible to conceive of any regulation
of this industry that does not provide for regulation of labor
relations at the mines. I realize that, while it may be contested,
yet I feel that it is going to be sustained."
"Also, there is a provision in this act that if this act, or any
part of it, is declared to be invalid as affecting any person or
persons, the rest of it will be valid, and if the other provisions
of this act still stand and the labor provisions are struck down,
we still want the act, because it stabilizes the industry and
enables us to negotiate with them on a basis which will at least be
different from what we have been confronted with since April, and
that is a disinclination to even negotiate a labor wage scale
because they claim they are losing money."
"If the labor provisions go down, we still want the industry
stabilized, so that our union may negotiate with them on the basis
of a living American wage standard."
[
Footnote 7]
§ 5(c).
"Any producer whose membership in the code and whose right to a
drawback on the taxes as provided under this Act has been canceled
shall have the right to have his membership restored upon payment
by him of all taxes in full for the time during which it shall be
found by the Commission that his violation of the code or of any
regulation thereunder, the observance of which is required by its
terms, shall have continued. In making its findings under this
subsection the Commission shall state specifically (1) the period
of time during which such violation continued, and (2) the amount
of taxes required to be paid to bring about reinstatement as a code
member."
§ 6(b).
"Any person aggrieved by an order issued by the Commission or
Labor Board in a proceeding to which such person is a party may
obtain a review of such order in the Circuit Court of Appeals of
the United States, within any circuit wherein such person resides
or has his principal place of business, or in the United States
Court of Appeals for the District of Columbia, by filing in such
court, within sixty days after the entry of such order, a written
petition praying that the order of the Commission or Labor Board be
modified or set aside in whole or in part. . . . The judgment and
decree of the court, affirming, modifying, and enforcing or setting
aside, in whole or in part, any such order of the Commission or
Labor Board, as the case may be, shall be final, subject to review
by the Supreme Court of the United States upon certiorari or
certification as provided in sections 239 and 240 of the Judicial
Code, as amended (U.S.C. title 28, §§ 346 and 347.)"