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While all the coal operators in the State have enjoyed immunity from law enforcement, the major companies enjoyed the most, as brought out in my testimony before the Senate committee. The Peabody and Old Ben Coal Cos. had their mines in Franklin County taken away from Inspector James Wilson because he wanted them cleaned up and placed in safe condition.
The Centralia Coal Co. enjoyed more immunity than any other company in my district. Perhaps one reason for this is that when Medill was up for reappointment in 1945 and the miners were opposed to his reappointment, the Centralia Coal Co. came to his support and endorsed him for reappointment.
In granting this immunity to the coal operators, the director had a definite purpose in mind, which you all know of by now; it was exposed by the St. Louis Post-Dispatch on March 19, 1947.
Mr. PERKINS. Mr. Chairman, at this point I want to ask unanimous consent to insert in the record a response to some of Mr. Haley's cases wherein I have made some research, and found that the cases that he has cited are not in point.
Mr. KELLEY. Without objection, it will be inserted in the record. (The document referred to is as follows:)
STATEMENT OF Hon. CARL D. PERKINS, A REPRESENTATIVE IN CONGRESS FROM THE
STATE OF KENTUCKY
At the conclusion of Mr. Haley's testimony I made the comment that I did not think the cases cited in his testimony were pertinent. I also stated that the constitutionality of H. R. 3023 could not be successfully questioned, and to substantiate that point I wish to file some authority in support of that contention.
I agree that the Federal Government is one of delegated powers only. It 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.
There is one provision in the Constitution on which the proposed legislation can clearly be grounded, and that is the authority conferred by article I, section 8, clause 3, to "regulate commerce * * * among the several States. * * *" It is now settled that the sale and shipment of coal, or the ( l’tracting to sell and ship, to customers in other States is interstate commerce, and that Congress may regulate such sales with regard to prices, unfair trade practices, and the like (Sunshine Anthracite Coal Co. v. Adkins (1940) 310 U. S. 381 ; Gray v. Powell (1941) 314 U. S. 402; City of Atlanta v. National Bituminous Coal Commission (D. D. C. 1939) 26 F. Supp. 606, aff’d (1939) 308 U. S. 517; U. S. v. Spokane Fuel Dealers Credit Ass'n (E. D. Wash. 1941) J. F. Supp. 387).
It must now be conceded under all recent Supreme Court decisions that there can be no hard-and-fast rule, no rigid formula or dependable touchstone as to what is or is not interstate commerce. In construing the commerce clause, the Supreme Court acts in a gradual process of inclusion and exclusion; the criterion is necessarily one of degree (Santa Cruz Packing Co. v. N. L. R. B. (1938) 303 U. S. 453; Wickard v. Filburn, supra). There is now no controlling force to past nomenclature or formulae. “The precise boundary
has never yet been, and doubtless never can be, delineated by a single abstract definition" (U.S. v. South-Eastern Underwriters Ass'n., supra).
The approach laid down by the Supreme Court today is whether the activity in question substantially and economically "affects" interstate commerce. If activities though intrastate have such an effect, they may be regulated (Wickard v. Filburn (1942) 317 U. S. 111; U. S. v. South-Eastern Underwriters Ass'n (1944) 322 U. S. 533). "The commerce power is not confined in its exercise to the regulation of commerce among the States. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of the appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce
*” (U. S. v. Wrightwood Dairy Co. (1942) 315 U. S. 110; see Smolowe v. Delando Corp. (C. C. A. 2d, 1943) 136 F. (20) 231). Moreover, it is no longer necessary to find that intrastate activities have a "direct" effect on interstate commerce.
Even if the activity "be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial and economic effect on interstate commerce, and this irrespective of whether
such effect is that what might at some earlier time have been defined as 'direct or 'indirect (Wickard v. Filburn, supra). Where intrastate activities are so commingled with or related to those of an interstate character, so that all must be regulated if interstate commerce is to be controlled effectively, then Congress has the power so to do (U. 8. v. Darby (1941) 312 U. S. 100; Currin v. Wallace (1939) 306 U. S. 1). Nor does the tenth amendment prevent Congress from resort to all means appropriate to the permitted end (U. S v. Darby, supra). If Congress says in a statutory declaration that particular activity affects interstate commerce, then the courts in passing on the validity of the statute have only the function of determining whether that activity is within reach of the Federal power (U. 8. v. Darby, supra). And such validity depends on what is regulated, not by what the regulation affects (Enterprise Box Co. v. Fleming (C. C. A. 5th, 1942) 125 F. (20) 897). It has been said generally that “Congress has the power to eliminate evils
which have been found to be promoted and transmitted by means of interstate commerce" and that "the Federal commerce power is as broad as the economic needs of the Nation” (American Power & Light Co. v. S. E. C. (1946) 329 U. S. 90, 103–104). Moreover, the Supreme Court has now ruled that manufacturing or production cannot be separated from the commerce in the goods produced. In Mandeville Island Farms, Inc. V. American Crystal Sugar Co. ((1948), 334 U. S. 219, 229), the Court declared :
"The artificial and mechanical separation of 'production' and 'manufacturing from 'commerce,' without regard to their economic continuity, the effects of the former two upon the latter, and the varying methods by which the several processes are organized, related and carried on in different industries or indeed within a single industry, no longer suffices to put either production or manufacturing and refining processes beyond reach of Congress' authority or of the statute."
There are some earlier decisions which restricted the definition of interstate commerce, but these cases above cited cut down the remaining ground, if any, upon wbich the earlier coal-mining cases were based.
In American Power & Light Co. v. 8. E. C., supra, the Supreme Court stated :
"Congress, of course, has undoubted power under the commerce clause to impose relevant conditions and requirements on those who use the channels of interstate commerce so that those channels will not be conduits for promoting or perpetuating economic evils
Thus to the extent that corporate business is transacted through such channels, affecting commerce in more States than one, Congress may act directly with respect to that business to protect what it conceives to be the national welfare. It may prescribe appropriate regulations and determine the conditions under which that business may be pursued.”
Such regulations also may impose criminal penalties for their violation. Within the limits of constitutional legislative discretion, Congress may exercise its police power to regulate, restrict, or prohibit activities in interstate commerce which it conceives to be injurious to the public health, morals or welfare, and punish violations thereof, regardless of whether or not the State has sought so to regulate (U. S. v. Darby, supra; Brooks v. U. S. (1925) 267 U. S. 432; Caminetti v. U.S. (1917) 242 U. S. 470).
In light of these decisions, it seems clear that the mining of coal, as well as the sale thereof, is a part of or substantially affects interstate commerce, and hence is subject to the regulatory authority of Congress. If so, then to protect the national welfare Congress may prescribe the conditions under which the business may be conducted, among which are the restrictions imposed by H. R. 3023.
The fact that the proposed legislation may preempt the field is not a constitutional objection where Congress has the power to act. H. R. 3023, however, specifically provides that nothing therein shall nullify any existing State statutes but rather is to supplement them in the interest of increased mine safety. State and Federal statutes on the same subject can and do exist together. Thus, for example, even though the United States prohibits the use of wire-tapping evidence in Federal courts, even when obtained from intrastate communications (Weis8 v. U. S. (1939) 308 U. S. 321), a State such as New York can by statute permit the use of such evidence in State courts. Matter of Harlem Check Cashing Corp. v. Bell ((1946) 296 N. Y. 15; Stemmer v. People of state of New York (1948) 298 N. Y. 728, aff’d by evenly divided Supreme Court (May 2, 1949) 17 L W 3327).
It is objected that H. R. 3023 is unconstitutional under the fifth and sixth amendments in that it affords no ascertainable standard of guilt, provides for the initial determination by an administrative officer without a hearing, and affords no court review of such determination. But H. R. 3023, while providing for an initial determination by a Federal mine inspector, then provides for an order by such officer, and if this order is disobeyed, the violator is then subject to trial by court and possible conviction for such violation. Thus the alleged violator is given a full court review to determine whether or not he has disobeyed a valid order. The fact that the initial determination is to be made by an administrative officer, subject to such a court review, does not deprive anyone of his constitutional rights. Such a contention was set at rest in Yakus v. U. S. ((1944) 321 U. S. 414), involving a conviction for disobeying price regulations fixed by administrative action. The Court said:
"Nor has there been any denial in the present criminal proceeding of the right, guaranteed by the sixth amendment, to a trial by a jury of the State and district where the crime was committed. Subject to the requirements of due process, which are here satisfied, Congress could make criminal the violation of a price regulation. The indictment charged a violation of the regulation in the district of trial, and the question whether petitioners had committed the crime thus charged in the indictment and defined by Congress, namely, whether they had violated the statute by willful disobedience of a price regulation promulgated by the Administrator, was properly submitted to the jury."
H. R. 3023 (as demonstrated hereafter) fixes an ascertainable standard which the administrative officer and the courts, upon possible prosecutions, must apply in determining whether a violation has occurred. To confide this original determination in the hands of an administrative officer is not invalid (Tagg Bros. & Moorhead v. U. S. (1930) 280 U. S. 420). In Yakus v. 0. 8., supra, it was said that “These (constitutional) essentials are preserved when Congress has specified the basic conditions of fact upon whose existence or occurrence, ascertained from relevant data by a designated administrative agency, it directs that its statutory command shall be effective. It is no objection that the determination of facts and the inferences to be drawn from them in the light of the statutory standards and declaration of policy call for the exercise of judgment, and for the formulation of subsidiary administrative policy within the prescribed statutory framework."
With regard to the objection that H. R. 3023 affords no ascertainable standard to be applied, while it is true that a statute may be so vague as to be unconstitutional, in that it does not define the crimes involved with appropriate definiteness, yet the Supreme Court has conceded that “the entire text of the statute or the subjects dealt with may furnish an adequate standard” (Winters v. New York (1948) 333 U. S. 507). In Screws v. U. 8. ((1945) 325 U. S. 91), upholding a criminal statute against the charge of uncertainty, the Court said that the constitutional requirement of due process of law demands only that a statute give a person acting with reference to it "fair warning that his conduct is within its prohibition.” In U. 8. v. Wurzbach ((1930) 280 U. S. 396), Mr. Justice Holmes declared :
"Whenever the law draws a line there will be cases very near each other on opposite sides. The precise course of the line may be uncertain, but no one can come near it without knowing that he does so, if he thinks, and if he does so it is familiar to the criminal law to make him take the risk."
Nor does a statute have to be so exact as to eliminate all possible variances of meaning. In Nash v. U.S. ((1913) 229 U. S. 373, 377), Mr. Justice Holmes also said:
the law is full of instances where a man's fate depends on his estimating rightly; that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or a short imprisonment, as here; he may incur the penalty of death."
H. R. 3023 uses the term "imminent danger" in defining the situation under which a mine may be ordered closed. This term has a generally understood legal meaning as embracing a situation reasonably certain to place life or limb in peril which must be instantly met and which cannot be guarded against by calling upon others for assistance (Pierce v. C. H. Bidwell Thresher Co. (1909) 158 Mich. 356, 122 N. W. 628; Employers' Liability Assurance Corp. v. Columbus McKinnon Chain Co. (W. D. N. Y. 1926) 13 F. (20) 128; 20 Words and Phrases (perm. ed.) 155 et seq.). Thus under a Seattle Building Code, empowering the superintendent of buildings to require a building to be vacated when it was unsafe to human life or property or in imminent danger of so becoming, the superintendent could authorize the closing of the building if the peril was imminent and manifest—that is, unmistakable and such as to constitute at the time an emergent danger (Coffin v. Blackwell ((1921) 116 Wash. 281, 199 Pae. 239).
From a reading of the above-cited cases, H. R. 3023 is clearly constitutional. In fact, there is no basis to successfully contend that the act is unconstitutional.
Mr. PERKINS. Also, I stated that I would clarify the Kentucky workmen's compensation law, and I have made an analysis of that.
Mr. KELLEY. Without objection, that will be inserted in the record. (The document referred to is as follows:)
PRESENT StatUS OF KENTUCKY WORKMEN'S COMPENSATION LAW (Statement of Hon. Carl D. Perkins, a Representative in Congress from the
State of Kentucky) In 1946 the Kentucky Legislature enacted chapter 203, which was enrolled on March 7, 1946, but which was allowed to become law without the signature of the Governor. The Governor issued the following statement applicable to chapter 203:
"This bill requires persons engaged in hazardous employment to accept the workmen's compensation law or be subject to fine or imprisonment. There is a division of opinion as to its validity. The [existing] elective compensation law is a mutual arrangement requiring affirmative acceptance by both employed and employer. To compel acceptance by one when it cannot constitutionally be enforced on the other party may engender insuperable obstacles.”
At the same session the legislature also enacted chapter 61, which was enrolled on March 15, 1946, and approved on March 26, 1946. This act, known as the financial responsibility act, provided that every employer engaged in hazardous employment and not excepted from the workmen's compensation law and who elects not to come under said compensation law shall deposit security with the commissioner of industrial relations sufficient to insure payment of any judgment obtained against him by an employee.
A case was soon brought to determine the legal effect of the two laws. The Kentucky Court of Appeals considered the legal questions involved in the case of Sumpter v. Burchett as Commonwealth Attorney, et al. (304 Ky. 858, 202 S. W. (20) 735 (1947)), the Kentucky Court of Appeals, without finding it necessary to pass on the constitutionality of the compulsory law (ch. 203) ruled that chapter 61, having been adopted later in point of time and being irreconcilable with chapter 203, had repealed chapter 203. Although the compulsory law (ch. 203) thus repealed, had amended part of the old elective compensation act, the court further ruled that the "repeal of the amending act (ch. 203) simply left the elective compensation law as it was before the repealed amending act (ch. 203) was passed."
In 1948, the Kentucky Legislature enacted chapter 14 which in effect reaffirmed the continuation of the elective workmen's compensation law as it stood prior to 1946. However, chapter 61 of 1946, the financial responsibility act, continues operative; and "employers engaged in hazardous occupations now have a choice of coming under the elective compensation law or of complying with the financial responsibility act. Under the latter act, employers retain their commonlaw defenses but are liable for unlimited damages.”
The appellant Sumpter in the above-cited case, the operator of a lumberyarda hazardous occupation-brought the action asking for a declaration of his rights and alleging that he wished to carry on his business at common law, that is with. out complying with the workmen's compensation law, but that he was willing to comply with the Financial Resposibility Act which required the posting of security bond with the Commissioner of Industrial Relations. He alleged that if he adopted this course of action, however, he would run afoul of the compulsory act.
The result was as above stated, that the court did not pass on the constitutionality of the compulsory workmen's compensation law but held that the law last enacted (Financial Responsibility Act) must be regarded as the final expression of the legislative will and permitted to prevail.
In Kentucky today as a result of the above decision we do not have a compulsory workmen's compensation statute but only have the voluntary workmen's compensation statute modified by the Financial Responsibility Act. This law merely requires the posting of security bond with the Commissioner of Industrial Relations.
In other words, this is only a subterfuge wherein many employers in hazardous occupations get around operating under the workmen's compensation act by merely complying with the Financial Responsibility Act, which permits him to carry on his operation under the common law. The employee in such instances is always required to prove actual negligence.
Mr. PERKINS. I also request unanimous consent that the statement of the President of the United Mine Workers of America that was made before the Senate committee be included in the record at this point.
Mr. KELLEY. Without objection, it is so ordered. (The statement referred to is as follows:) STATEMENT BY John L. LEWIS, PRESIDENT, UNITED MINE WORKERS OF AMERICA
During the deliberations of the Eightieth Congress, the Senate of the United States adopted Senate Resolution 98, which provided for a full investigation of the tragic loss of life in the Centralia mine explosion. Pursuant to that resolution such investigation was conducted by a subcommittee of the then Committee on Pubilc Lands, consisting of Senators Cordon, Dworshak, and O'Mahoney. This subcommittee on June 5, 1947, issued a report of their findings, Report No. 238.
I would like to quote briefly certain portions of that report; on page 12 under the heading, "Safety measures in the coal industry generally," we find this paragraph :
"While a discussion and report of the hazards and safety measures prevailing in the coal industry generally is not within the purview of the resolution authorizing this investigation, the testimony developed in hearings before this committee requires that some comment be made upon the general hazards incident to coal mining. The extent and efficiency of safety programs now prevailing, and certain defects in such programs, were made apparent by the testimony before this committee.”
There follows discussion of general mine-safety measures and the last paragraph on page 13 of that report sets forth the recommendation of the committee, and I quote:
“The first and most essential step is the enactment by Congress of legislation that will not only raise the standard of safety but give the Federal Government the power it now lacks to enforce that standard.
"In connection with the consideration of such legislation, the Congress should, without delay, make a thorough investigation into the whole problem pre sented by the inherent hazards in coal mining. Such investigation should include a thorough study of the various State statutes on the subject, and the methods of their enforcement. It should also include an examination of the mining practices in the different States and in the different types of coal mining and the extent to which such practices can be standardized and uniform safety methods adopted.
"Immediate and affirmative action is imperative."
Acting upon this recommendation the Committee of Public Lands, now the Committee of Interior and Insular Affairs, recommended to the Senate body, and that body subsequently enacted into law, Senate Joint Resolution 130, which became Public Law 328, Eightieth Congress.
Public Law 328 is a law relating to safety in bituminous coal and lignite mines of the United States. It gave to the Federal Mine Safety Bureau the right to have its inspectors inspect mines and report to Congress the violations found with respect to ventilation, rock dusting, storage and use of explosives, roof and rib support, the use of water or water with wetting agents, or other means of dust control, and the prevention of fires. I ask you to note that the above-enumerated violations run largely to the major causes of mine explosions. The improper use of electricity which causes approximately 44 percent of mine explosions was left out of these hazards. The Director of the Bureau of Mines was to notify the owner, the operator of the mines, and the State agencies charged with enforcement of safety measures of any violations of the above subjects and to recommend methods of correction, and to ask them severally to report to the Director of the Bureau of Mines such action taken with respect to said recommendations.
The Secretary of the Interior, through the Director of the Bureau of Mines, shall each 3 months, starting September 1, 1947, report to the Congress of the