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of what constitutes a violation and is in position to protect himself. But if you have the kind of general statement in the law which you have mentioned, and then allowed the inspector to make up his own law as he went along to determine himself whether the mine was or was not safe and commenced to issue orders which would carry in the end a criminal penalty for violation, I would say that would not be law that was involved and would be a monstrosity in our legal system.

"Senator CORDON. I am going to have to agree with you all through that statement. I think there is no question about the right of a legislative body to require or prohibit any act in general terms and then to delegate to administrative officials the power and the obligations of administering that act and of promulgating the necesessary rules and regulations to so administer; along with those rules and regulations, carry sufficient certainty to advise the individual affected of the obligations under which he is placed pursuant to that law. That would be a proper subject on prosecution or for a violation. However, if I may interject this, I doubt the wisdom of any criminal penalty in a type of legislation of this character. There is altogether too much room for differences of judgments among informed people in the field." [Italics supplied.]

It can be argued, therefore, that the constitutional inadequacy of H. R. 3023 with respect to its relationship to the fifth amendment may be expressed in terms of the failure of the coal mines inspection law and H. R. 3023 to provide

(a) Any standard rule or policy to guide the Secretary of the Interior in establishing appropriate rules and regulations.

(b) A hearing, public or otherwise.

(c) The reception of evidence or the right to cross-examine witnesses.

(d) Any limitation upon, or disclosure of, the character of the material, data, or other factors which the Federal mine inspector may consider in connection with an order looking toward the closing of the mines.

(e) Any findings of fact or other disclosure of the basis of the conclusion, determination, or decision reached.

In the immediately preceding paragraphs I have endeavored to point out what I sincerely believe to be serious objections to H. R. 3023 on the ground that it would be an improper exercise of authority under the commerce clause of the Constitution and on the ground that it violates the principles of the fifth amendment to the Constitution. I believe the arguments I have made concerning section 8 of article I and the fifth amendment are convincing as to the invalidity of the proposed legislation.

In any event, however, H. R. 3023 is unquestionably unconstitutional because it is repugnant to the sixth amendment to the Constitution. The sixth amendment reads as follows:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." The law is well settled that in criminal statutes and even in the civil application of Federal statutes, the standards under which guilt or responsibility are to be determined must be specific and definite. It appears that H. R. 3023 fails to establish such definite standards. The "Safety Code" which has been established by the Secretary of the Interior pursuant to the coal-mines inspection law is constitutionally deficient because of lack of certainty of standards and H. R. 3023 does not attempt to correct this deficiency by prescribing any "ascertainable standards of conduct."

Your attention is directed to line 7 of the proposed bill which sets forth the only reference to a standard in the indefinite terms of "imminent danger." The United States Supreme Court in United States v. Cohen Grocery Company (255 U. S. 81 (1921)) declared unconstitutional a Federal statute containing similarly indefinite standards although it must be said that the standards involved in the Cohen case were far clearer and more susceptible of definition than the terms inherent in the legislation which is now before the committee. In the Cohen case, the Supreme Court held that a law to be valid under the sixth amendment of the Constitution must be of such certainty as to constitute a fixing by Congress of an "ascertainable standard of conduct." The lower court in holding the law unconstitutional said, in part:

"Congress alone has power to define crimes against the United States. The power cannot be delegated to the courts or to the juries of this country.

"Therefore, because the law is vague, indefinite, uncertain, and because it fixed no immutable standard of guilt, but leaves such standard to the variant views of the different courts and juries which may be called on to enforce it, and because it does not inform defendant of the nature and cause of the accusation against him, I think it is constitutionally invalid."

The Supreme Court, thereafter, in upholding the lower court's decision on the unconstitutionality of the Lever Act which was under consideration, said:

"Observe that the section forbids no specific or definite action. It confines the subject matter of the investigation which it authorized to no element essentially inherent in the transaction as to which it provides. It leaves open, therefore, the widest conceivable inquiry, the scope of which no one can foresee, and the result of which no one can foreshadow or adequately guard against."

The principle laid down in the Cohen case was extended to apply in civil actions in Standard Chemicals and Metals Corp. v. Waugh Chemical Corp. (231 N. Y. 51, 131 N. E. 566). In this case the price fixed by the President under the Lever Act was less than that fixed in a contract. (Text of the Lever Act is set forth in appendix C.) The vendor took the position that the standards of the law under which the price was fixed by the President were too indefinite to be valid. Justice Cardozo, in delivering the opinion of the court, said:

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"I feel constrained to hold, in adherence to the ruling of the Supreme Court in U. S. v. L. Cohen Grocery Co., decided February 28, 1941 (255 U. S. 81) * and Weeds v. U. S. (255 U. S. 108) ** that the prohibition of the Lever Act is void, and that illegally cannot result from the failure to obey it. I do not overlook the fact that the Court was there dealing with a criminal prosecution. The ground on which it placed its judgment applies, and with like consequences, to civil suits as well. The prohibition was declared a nullity because too vague to be intelligible. No standard of duty had been established.

If this is the

rationale of the decision, its consequences are not limited to criminal prosecutions. A prohibition so indefinite as to be unintelligible is not a prohibition by which conduct can be governed. It is not a rule at all; it is merely exhortation and entreaty."

The Supreme Court of the United States dealt with the matter in A. B. Small Co. v. American Sugar Refining Co. (267 U. S. 233 (1925)). In this case a vendee refused to accept a commodity which he had contracted to buy on the ground that the seller was not entitled to a price higher than that which was fixed by the President under the Lever Act. The Supreme Court held that its decision in the Cohen case, supra, invalidating section 4 of the Lever Act as applied to criminal prosecutions, likewise applied as a test of the validity of a contract. The Court said that in either case the standard of duty set up is so vague and indefinite as really to be no rule or standard at all. Mr. Justice Van Devanter, in delivering the opinion of the Court, said, at page 239:

"The defendant attempts to distinguish those cases (referring to Cohen and other cases) because they were criminal prosecutions. But that is not an adequate distinction. The ground or principle of the decisions was not such as to be applicable only to criminal prosecutions. It was not the criminal penalty that was held invalid, but the exaction of obedience to a rule or standard which was so vague and indefinite as really to be no rule or standard at all.

"Any other means of exaction, such as declaring the transaction unlawful or stripping a participant of his rights under it, was equally within the principle of those cases. They have been so construed and applied by other courts in civil

proceedings."

The principle of the Cohen case, supra, was endorsed but distinguished by the Supreme Court as recently as 1942, in U. S. v. Ragen (314 U. S. 513). involved an income-tax statute. In its opinion, the Supreme Court said, at page This case 523:

"In the Cohen Grocery case, this Court held a conviction upon section 4 of the Lever Act (41 Stat. 297, 298) unconstitutional because the statute left open 'the widest conceivable inquiry, the scope of which no one can foresee and the result of which no one can foreshadow or adequately guard against,' and because an 'attempt to enforce the section would be the exact equivalent of an effort to carry out a statute which in terms merely penalized and punished all acts detrimental to the public interest when unjust and unreasonable in the estimation of the court and jury.' No such unworkable standards are involved here. Section 145 of the Revenue Act of 1932, standing alone, is not vague nor does it delegate policy-making powers to either court or jury.”

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Again, in 1945, the United States Supreme Court affirmed the principle of the Cohen case. In Screws et al. v. U. S. (325 U. S. 91) there was involved the con

struction of section 20 of the Criminal Code, insofar as it penalizes acts which "willfully" deprive a person of any right secured to him by the due-process clause and the fourteenth amendment. The Supreme Court said the act is to be construed as requiring a specific intent to deprive someone of a right which has been made specific by the express terms of the Constitution or laws of the United States or by decisions interpreting them, and that as so construed the section is not unconstitutional as lacking an ascertainable standard of guilt. In distinguishing the Cohen case the Court said:

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"In that case the act contained no definition of an 'unjust or unreasonable rate' nor did it refer to any source where the measure of 'unjust or unreasonable' could be ascertained. In the instant case the decisions of the courts are, to be sure, a source of reference for ascertaining the specific intent to deprive a person of a Federal right made definite by decision or other rule of law saves the act from any charge of unconstitutionality on the ground of vagueness."

Certainly the principle of the Cohen case has application to the proposed legislation because of the indefiniteness of the standards involved. "Imminent danger" is not a standard which is actually susceptible to determination with any degree of certainty. The principles enunciated in the Cohen case regarding the requirement of specific standards have never been reversed or modified by any court subsequent to the date of the Supreme Court decision. The fact is, these principles have been referred to many times in subsequent court decisions and, if anything, have been broadened and extended.

It is possible some members of the committee may feel the implications to be drawn from the cases sustaining the validity of such acts as the National Labor Relations Act, the Fair Labor Standards Act, or the Agricultural Marketing Act might support the contention that H. R. 3023 is constitutional. By way of anticipating this possibility, I am, at this point, going to address a few of my remarks to this question and demonstrate to the committee that the proposed legislation cannot be supported upon any theory heretofore enunciated by the Supreme Court of the United States.

The constitutionality of the Wagner Act was upheld by the Supreme Court of the United States in NLRB v. Jones & Laughlin Steel Corporation (301 U. S. 1 (1937)). The decision of the Supreme Court is predicated on the theory that labor disputes can be of such magnitude as to constitute a "substantial" interference with interstate commerce. The Court repeatedly lays down this test of constitutionality which appears to be essentially an examination into the "effect" on commerce as distinguished from a determination of the "use" to which the covered subject matter may be put. Chief Justice Hughes, in delivering the opinion of the Court in the Jones & Laughlin case said:

"Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens or obstructions, Congress cannot be denied the power to exercise that control." [Italics supplied.]

This sounds the keynote upon which this decision as well as other important subsequent decisions rest. In upholding the validity of the Wagner Act, the Court leaves no doubt that the proponents of the legislation conclusively had demonstrated that labor disputes constituted a serious obstruction to, and disruption of, commerce. In fact, the Wagner Act itself recites that the purpose of the legislation is to "diminish the cause of labor disputes burdening or obstructing interstate and foreign commerce." [Italics supplied.]

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The Court further emphasizes this necessary constitutional ingredient, saying: "The question is necessarily one of degree the close and intimate effect which brings the subject within the reach of Federal power may be due to activities in relation to productive industry, although the industry when separately viewed is local. * * [Italics supplied.]

Four years after the decision upholding the National Labor Relations Act, we find the Supreme Court enunciating the same principles to support its conclusion that the Fair Labor Standards Act falls within the framework of the Constitution. In U. S. v. F. W. Darby Lumber Co., et al. (312 U. S. 100 (1941)) the Supreme Court held that regulation of wages of production employees “engaged in interstate commerce" was constitutional, saying in part:

"The power of Congress over interstate commerce is not confined to the regulation of commerce among the States. It extends to those activities intrastate, which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end. **

* it does not follow that Congress may not by appropriate legislation regulate intrastate activities where they have a substantial effect on interstate commerce.

“This Court [has] many times held that the power of Congress to regulate interstate commerce extends to the regulation through legislative action of activities intrastate which have a substantial effect on the commerce or the exercise of the congressional power over it." [Italics supplied.]

Wickard v. Filburn (317 U. S. 111 (1942)), involves a test of the Agricultural Adjustment Act of 1938, as amended by the act of May 26, 1941. (Title VII, sec. 1322, U. S. C. A.) whereby the wheat-marketing quota and penalties for violation thereof were challenged by the plaintiff. The case was based upon the contention, among other things, that the act could have no application to wheat not intended in any part for commerce but was intended and used wholly for local consumption on a particular farm. The effect of the act was to restrict the amount of wheat which may be produced for market. In general, the case holds that the production of wheat and consumption on the farm may be trivial in a particular case, but this does not remove the grower from the scope of Federal regulation where his contribution, taken together with that of many others similarly situated, represents a substantial factor in the over-all wheat market. Mr. Justice Jackson, in his opinion, reiterated the aforementioned principles regarding the "effect" of an activity on interstate commerce, saying:

"Whether the subject of regulation in question was 'production,' 'consumption," or 'marketing' is therefore not material for purposes of deciding the question of Federal power before us. That an activity is of local character may help in a doubtful case to determine whether Congress intended to reach it" (Federal Trade Commission v. Bunte Bros., 312 U. S. 349).

"But even if appellee's 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 economic effect on interstate commerce and this, irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect'." [Italics supplied.]

I feel certain that a study by the committee of the above-cited cases will serve to convince each member, as it has me, that the constitutionality of the proposed bill cannot by analogy be sustained on the principles therein enunciated. All of the cases are based upon a concept of the "substantial effect" of the cov ered activities on the flow of interstate commerce, whereas nowhere in the record has it been seriously contended that the regulation of safety in the mines is necessary in order to preserve the uninterrupted flow of commerce in coal. The entire record of the testimony given before the subcommittee can be examined without finding any credible evidence to support the contention that H. R. 3023 is justified because of the impact of mine accidents on interstate commerce.

The record of the testimony of the advocates of S. 1031, in the hearings on the Senate side, including testimony of John L. Lewis, president of the United Mine Workers of America, constitutes nothing more than arguments to the effect that improved safety conditions in the mines are "desirable." However, the same thing can be said for improved safety on the highways of the Nation, but there are no groups advocating Federal regulation in this field, notwithstanding the fact that the loss of life on the highways dwarfs that resulting from mine accidents. It must be remembered that the laudable end of saving lives does not of itself enlarge upon constitutional powers nor is it of sufficient importance to bring the proposed legislation within the purview of the general welfare clause of the Constitution. The bituminous coal mine owners and operators, the National Coal Association, and the many persons engaged in the regulation of mine safety on behalf of the several States are all vitally interested in the problem of improving safety conditions, and it is to these groups that the responsibility should fall rather than to the Federal Government.

The Federal Food and Drug Act (34 Stat. 768) has been held by the Supreme Court to be a valid exercise of Federal regulatory powers over interstate commerce. I have directed your attention to this act because it has been contended by some that its validity supports the contention that the proposed legislation falls within the framework of the Constitution. Of course, insofar as the Food and Drug Act covers articles which actually enter interstate commerce, there appears to be no question but that the Federal Government has a right to regulate a direct activity of this sort. The main point here is to compare the "standards" contained in the Food and Drug Act with the so-called standard set forth in H. R. 3023. As you know, the proposed bill states that "imminent danger" is the standard which the Federal mine inspector must determine before issuing an order looking toward the closing of the mines. The committee must appreciate the extremely indefinite nature of such a standard. Your examination of the

Food and Drug Act, however, with particular reference to sections 8 and 10, will show that a great effort has been made in that act to define the matters which will constitute a crime or result in a penalty in order to fall within the framework of the Constitution and particularly within the purview of the fifth and sixth amendments. I have not set forth the standards here which are in the Food and Drug Act because of their voluminous nature. It is sufficient, however, to say that it is folly to attempt to compare the standards in H. R. 3023 with the very comprehensive standards set forth in the Federal Food and Drug Act. This example will serve only to emphasize one of the deficiencies of the proposed legislation and, of course, should be remedied in the event that the constitutional questions which have been raised here should be resolved adverse to our sincere beliefs in the matter.

CONCLUSION

By way of summary, it can be said that the proposed legislation is unconstitutional, unwise and contrary to the public interest because it appears that(1) The proposed legislation is repugnant to article I and the fifth, sixth, and tenth amendments to the Constitution.

(2) The imposition of Federal regulations for safety will cause confusion which may result in an increase rather than a reduction in accidents.

(3) The proposed legislation would render State mine inspection services and laws ineffective and obsolete in many instances.

(4) The proposed legislation would change the Federal Government emphasis on safety from education to enforcement.

APPENDIX A.-Average number of employees per bituminous coal mine, 1947, by

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1 Computed by dividing annual production by output per man for 1947 and that result by number of mines.

Source: U. S. Bureau of Mines.

APPENDIX B.-Accidents in bituminous coal mines, 1930-48

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