Statement by Operators' Association of Williamson Field showing proposed proration of tonnage in Williamson district under provisions of Guffey bill, and effect on distribution of tonnage, if this bill had been in effect during year 1934-Contd.

at 19.65

Operated during 1930 and 1931 and closed during 1932.

10 Operated during 1930-31-32.

11 Operated in 1930 and part of 1931.

12 Operated only in 1934. Tonnage shown for Buchanan Collieries (*), 1,410, included with Virginia Lee. 13 Did not operate in 1932 and part of 1931 and 1933.

NOTE.-353,352 tons included above are for mines which are worked out and not operating. This is about 4.11 percent of total percentage, or 254,012 tons included in the tonnage for 1934 based on the mean average.

STATEMENT OF ROLLA D. CAMPBELL, HUNTINGTON, W. VA.

Mr. CAMPBELL. Mr. Chairman and gentlemen, my name is Rolla D. Campbell; I live in Huntington, W. Va. I am an attorney at law in active practice. I came here as a representative of some landholding interests in Mingo, Logan, and Boone Counties, W. Va. They are the Dingess-Run Coal Co., which owns approximately 27,000 acres on Dingess Run and Rum Creek in Logan County, most of which is leased to commercial operators, one mine, a captive mine, being leased to the Youngstown Sheet & Tube Co.; also the Cole & Crane Real Estate Trust, which owns between 35,000 and 40,000 acres of lands in Mingo, Noone, and Logan Counties, practically all of which is leased.

The production from these lands is approximately 31⁄2 million tons and represents about a third of the entire production from Logan County.

I also speak for the Chamber of Commerce of Huntington, W. Va., of which I happen to be a director, and for the people in that community who feel that they will be adversely affected by this bill.

The grounds for opposition are: First, that the bill is unconstitutional; second, that it is not a desirable measure even if it were legal; third, that it is utterly impractical as applied to the factual background of the industry; and, fourth, that the implications of this legislature are such that it deserves opposition whatever other merits it might have.

I want to speak first about the constitutionality of the measure; and, before I get into the discussion of constitutional principles, I want to say that I think the legality or constitutionality thereof has an exceedingly practical aspect. Mr. Francis touched upon that subject in the close of his talk this morning.

The coal industry cannot function in an atmosphere of illegality. We have had a great deal of difficulty in that respect under code operation. Some groups who are now proponents of this bill have openly stated at meetings of operators with the miners and in public meetings before the N. R. A., and it is no secret that they think control of the industry is completely beyond the constitutional powers of Congress. That feeling is widespread throughout legal circles which advise the coal industry.

We saw that last fall when the gold cases were admitted to review by the Supreme Court. Immediately business became restless. Businessmen did not know what was going to take place, and whatever recovery there might have been under way at the time practically stopped and business marked time.

Whatever is done here in a legislative way should be based on a very sound constitutional basis; and it should not after enacement be subject to criticism, to doubts, and to the statement that we hear that "I will meet you on the court house steps.'

This bill has a history. I assume that the chairman is familiar with the history behind this bill. I doubt if Senator Minton is.

In 1932 a bill was introduced in Congress, called the Davis-Kelly bill, and extensive hearings were held upon that bill. The chairman of this committee has before him the records made at that time. The hearing was held before a subcommittee of the Senate Mines and Mining Committee.

The theory of that bill was that Congress could deny any Statechartered corporation the right to engage in interstate commerce; and, having that power, so the proponents said, it, therefore, could name the conditions upon which those corporations could be admitted to engage in interstate commerce; and among those conditions would be that they would have to conform to certain regulations as to labor, as to the price of the commodity, and matters of that sort.

That bill was based upon an opinion written by a Washington lawyer named Edmund D. Campbell who prepared it at the instance of the Bituminous Coal Commission. Judge Warrum, one of the proponents of the Davis-Kelly bill, supported that theory and presented arguments along with Mr. Campbell as to why it was a good one.

Now, you will find Mr. Campbell's statement with respect to that bill in volume I at pages 51 and 84, and Judge Warrum's testimony and opinion in volume I at page 58 and volume II at page 1228. Elaborate arguments and briefs were made and filed at those hearings; and I think it would be well to recite who appeared in opposition to that bill and whom they represented, because it will indicate to you how the counsel for the industry felt about this particular measure. Mr. E. L. Greever appeared as counsel for the National Coal Association. His testimony and opinions are found in volume II, pages 406, 418, and 1169. H. D. Rummel, Esq., of Charleston, W. Va., appeared for the National Coal Association. His testimony is in volume I, page 250. Mr. A. L. Liveright, of Pennsylvania, appeared

in opposition to the bill as counsel for the Pennsylvania Coal Producers' Association, and gave it as his opinion that the Davis-Kelly bill was unconstitutional. His testimony appears in volume II at page 365. Mr. C. L. Estep, of Logan, W. Va., appeared for the Logan County Chamber of Commerce and the Logan County Operators Association. His testimony is in volume II at page 1121. Mr. James A. Emery, counsel for the National Association of Manufacturers of the United States appeared. His statement appears in volume II at page 979. Mr. John H. Meek appeared as counsel for the Manufacturers Club of Huntington, W. Va., and the Appalachian Electric Power Co. His statement appears in volume II at page 1086. Mr. William D. Belden, appeared as counsel for the Eastern Ohio Coal Operators Association. His statement appears in volume II at page 581. Mr. Ashton File appeared on behalf of the Winding Gulf Operators Association. His statement appears in volume II at page 692.

Now, I apologize for taking up your time in that elaboration of who appeared, but I think it is exceedingly important on this question of constitutionality because every one of those gentlemen were then plainly of the opinion that the Davis-Kelly bill was bad.

Senator NEELY. Mr. Campbell, Senator Minton is too modest to tell you that he is familiar with this record to which you have just referred, but I just called his attention to the fact that in Judge Rummell's testimony a statement was read into the record, which has now been incorporated into the record which we are making four or five times. It is a quotation from the case of Heisler v. Thomas Colliery Co., 260 U. S. 245, as follows [reading]:

The reach and consequences of the contention repel its acceptance. If possibility, or, indeed, certainty, of exportation of a product or article from a State, determines it to be interstate commerce before the commencement of its movement from the State, it would seem to follow that it is in such commerce from the instant of its growth or production, and in the case of coals, as they lie in the ground. The result would be curious. It would nationalize all industry; 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, nides and flesh of cattle yet "on the hoof” while yet unshorn, and coal yet unmined, because they are, in varying percentages destined for and shortly to be exported to States other than those of their production.

Mr. CAMPBELL. I had not intended to quote from any case, but since you have done that for me I am very much obliged to you.

Senator NEELY. My only purpose was to call your attention to the fact that all of the decisions bearing on this subject have been read into the record at least three times.

Mr. CAMPBELL. Knowing that, I simply referred to the briefs filed so that it would not be necessary for me to make any further reference to the cases.

While those hearings were in progress another bill was introduced and referred to the same committee; at least, it was considered along with the Davis-Kelly bill. That was known as Senator Hayden's substitute for S. 2935 and which is found attached to Senator Hatfield's report as appendix B. The theory of that bill was the same as the present Guffey bill. In fact, there are comparatively minor

differences between the two, but the legal theory behind both was the same.

There were quite a few discussions at that time between the chairman of the committee and the chief proponent in a legal way on this Guffey bill, namely, Judge Warrum, and he was asked his opinion about Senator Hayden's substitute. I am going to take the liberty, if the chairman will grant me that permission, of quoting Judge Warrum's remarks, because I think this will make it unanimous among all counsel that appear here that the Guffey bill is unconstitutional.

Judge Warrum was asked by Senator Hayden:

In your opinion, is it within the power of Congress to say that no corporation engaged in the mining and selling of coal could transport coal from one State to another unless it were a member of the selling pool?

Judge Warrum replied:

I doubt that very much, Senator. I am going to take up the question now as to the constitutionality of these regulations. I think that Congress can impose regulation upon corporations engaged in interstate commerce, the same as a State can do if a corporation comes into the State to engage in domestic commerce. I do not think the regulations can impair what is called the property rights of a corporation, impair contract or business rights. I do not believe, to answer your question categorically, that Congress can impose upon a corporation of that kind the compulsion of joining a selling pool.

Then again, on page 1253, volume II, Judge Warrum stated:

I doubt the power of Congress to compel a corporation to abandon any the ordinary course of business that it has and joining a selling pool.

And again he says:

I think the first attack on that would be that that was an impeachment of its rights under the fifth and fourteenth amendments, that it shall not be deprived of any property rights except by due process of law, and we have tried to avoid that in the bill as far as our suggestions could go.

Senator NEELY. Do you consider Judge Warram an able constitutional lawyer?

Mr. CAMPBELL. I do.

Senator NEELY. I suppose you know that he has unconditionally endorsed the constitutionality of the Guffey bill.

Mr. CAMPBELL. I understand he has, but I am calling attention to these statements to show that he has evidently changed his mind.

I think it will have to be admitted that since the decisions in the Child Labor case and the case of Hill v. Wallace, the tax provided in section 3 of title I is plainly beyond the constitutional powers of Congress.

That section is the chief enforcing agent of this bill; and if you take that out you have practically taken the heart of the bill out along with it. Without that you have practically no difference, so far as legal effect is concerned, between the Guffey bill and the Recovery Act.

There is one other section in the bill which undertakes still to preserve the principle on which the Davis-Kelly bill was propounded. That is section 11 of title I, wherein it is stated that no corporation shall engage in interstate commerce or interstate communication, or even use the mails in connection with the sale of coal, unless it joins this code provided in section 4, title I.

Now, with respect to that principle, I will simply refer the members of the committee to the briefs which have been filed, and I have only this comment to make: That there are quite a number of cases which hold with respect to the power of a State to exclude a foreign corporation from doing an intrastate business; that while power is absolute and cannot be questioned from a constitutional point of view, yet the State cannot lay down, as a condition or price of its consent, the surrender of a constitutional right. That appears in those cases where foreign corporations doing an intrastate business are required to give up the right to resort to the Federal courts, and the courts say that cannot be done.

There is another case in which one of the Northwestern States undertook to make a public carrier out of a private carrier by truck as a condition of the consent of the State to the use of the roads and public highways. The court said that the State had the absolute right to exclude those trucks from the highway, but it could not name as a price for its consent the surrender of a constitutional right to remain a private carrier.

I think those principles are all so well founded that no further argument is needed to support the contention that the provisions of section 11 are plainly unconstitutional and beyond congressional power.

That brings us back, therefore, to the one other power which Congress might have, and that is the power over interstate commerce. The briefs to which I have referred discusses that exhaustively. You heard the arguments last night and today on the same subject. I am not going to repeat them. I simply want to say that the case which the chairman so kindly quoted for me, together with numerous other decisions, held that the production and manufacture of goods are not interstate commerce, and that they are wholly beyond the power of Congress, and when you lay down that principle, you exclude the allotment provisions of this bill; you exclude the labor provisions of this bill.

Now, I think that if you take the tax out of this bill, the allotment provisions and the labor provisions, then even the proponents would deny it. They would not want it enacted into law. There are only two cases of importance which have occurred since the Davis-Kelly hearings. They are the Appalachian Coals, Inc., against the United States.

Senator MINTON. What is that citation?

Mr. CAMPBELL. That is 288 U. S., 471. Also Nebbia v. New York, which is 291 U. S., 502. The Appalachian case was decided in 1933. The Nebbia case was decided in 1934. I happen to have had some connection with the Appalachian Coals case since I was on the drafting committee that prepared the various papers for the organization of that particular company. I do not claim authorship of them. That was done by other counsel.

The theory under which that organization was created, was that the rule of reason ought to apply to a combination of miscellaneous units which did not create a monopoly just as it applied to corporate consolidations under a single ownership.

There were no precedents prior to that case that was not true, that that theory could not be applied. Every other case which had been decided by the Supreme Court had ample distinguishing features. The Appalachian Coals was a joint selling agency which represented,