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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:
"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.]
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. 8. 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 intendeel 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 covered 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 acci. dents. 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
! 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
APPENDIX C.-FooD CONTROL, OR LEVER ACT, SECTION 4 OF ACT OF AUGUST 10, 1917
(c. 53, 40 STAT. 276), AS AMENDED BY SECTION 2 OF THE ACT OF OCTOBER 22, 1919 (C. 80, 41 STAT. 297)
That it is hereby made unlawful for any person willfully to destroy any necessaries for the purpose of enhancing the price or restrict the supply thereof; knowingly to commit waste or willfully to permit preventable deterioration of any necessaries in or in connection with their production, manufacture, or distribution; to hoard, as defined in section 6 of this Act, any necessaries; to monopolize or attempt to monopolize, either locally or generally, any necessaries, to engage in any discriminatory and unfair, or any deceptive or wasteful practice or device, or to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries; to conspire, combine, agree, or arrange with any other person (a) to limit the facilities for transporting, producing, harvesting, manufacturing, supplying, storing, or dealing in any necessaries; (b) to restrict the supply of any necessaries; (c) to restrict distribution of any necessaries; (d) to prevent, limit, or lessen the manufacture or production of any necessaries in order to enchance the price thereof; or (e) to exact excessive prices for any necessaries or to aid or abet the doing of any act made unlawful by this section. Any person violating any of the provisions of this section, upon conviction thereof, shall be fined not exceeding $5,000 or be imprisoned for not more than two years, or both: Provided, That this section shall not apply to any farmer, gardener, horticulturist, vineyardist, planter, ranchman, dairyman, stockman, or other agriculturist, with respect to the farm products produced or raised upon land owned, leased, or cultivated by him: Provided further, That nothing in this Act shall be construed to forbid or make unlawful collective bargaining by any cooperative association or other association of farmers, dairymen, gardeners, or other producers of farm products with respect to the farm products produced or raised by its members upon land owned, leased, or cultivated by them.
Mr. KELLEY. We will return at 1: 30.
(Whereupon, at 12:10 p. m., the subcommittee recessed until 1:30 p.m. of the same day.)
(The special subcommittee reconvened at 1:30 p. m., pursuant to the recess.)
Mr. KELLEY. The committee will be in order.
TESTIMONY OF J. J. FORBES, CHIEF, HEALTH AND SAFETY DIVI
SION, BUREAU OF MINES, DEPARTMENT OF THE INTERIOR Mr. FORBES. Mr. Chairman, I have a prepared statement and with your permission I would like to go over it and submit it for the record.
My name is J.J. Forbes, Chief, Health and Safety Division, Bureau of Mines, Department of the Interior. I have been in the employ of the Bureau of Mines, engaged in safety and health work, for over 34 years. I worked in coal mines, commencing at an early age, as mine laborer, mining engineer, and mine safety inspector. I was graduated in mining engineering from Pennsylvania State College in 1911. During my employment in the Bureau, I inspected mines and furthered safety educational work in virtually all of the coal and metal mining States of the Nation, participated in recovery work and investigations following many mine disasters which involved heavy loss of life, supervised the field work of the Safety Division for 17 years, assisted with establishment of the Coal Mine Inspection work, and served as its first chief.
Mr. Chairman, I think I will brief for the benefit of the committee the Federal inspection work and its procedure.
Mr. KELLEY. Very well.
Mr. FORBES. The Coal Mine Inspection Branch of the Health and Safety Division, Bureau of Mines, was established to carry out an act of Congress of May 7, 1941, known as Public Law 49, Seventyseventh Congress, H. Ř. 2082. Under the provisions in the act, the Secretary of Interior, acting through the Bureau of Mines, is authorized and empowered to make or cause to be made annual or necessary inspections and investigations in coal mines. The object of these inspections is to reduce mine accidents by determining the causes of unhealthy or unsafe conditions, accidents, or occupational diseases in coal mines, and making recommendations for their prevention or amelioration. Insofar as Public Law 49 is concerned, compliance with the Federal inspectors' recommendations is not mandatory.
With respect to employment of personnel, coal mine inspectors and engineers of the Coal Mine Inspection Branch are selected from the civil service register.
Applicants for the position of coal mine inspector must meet the rigid requirements set up by the United States Civil Service Commission before their names can be included in the register. These requirements for the several grades of Federal coal mine inspector are as follows:
Sample of work: Applicants must submit with their application a 2.30-word description of some phase of coal mining, such as a description of the ventilating system, haulage system, or timbering methods used in a mine familiar to the applicant. The description must be prepared by the applicant and he must certify in his own handwriting that he received no assistance in composing it. Applicants who fail to submit this sample of their work, or who submit unsatisfactory samples, will receive no further consideration by the Civil Service Commission.
Now, this next phase I would like to emphasize pretty strongly, and that is the experience and qualifications of applicants.
Applicants must show as a minimum the quality and amount of experience prescribed below unless they substitute education for experience.
There are three grades. The first one is CAF-9, starting salary $4,479 per annum. This requires 6 years of progressive experience in practical coal mining, of which at least 2 years must have been specialized experience in coal mining operations of moderate difficulty, which involved responsibility for providing and applying modern safety and health programs in coal mines in a position of at least the responsibility required of a mine superintendent, mine foreman, mining engineer, or safety inspector.
The next grade is CAF-11, which has a starting salary of $5,232 per annum, and requires 7 years of progressive coal-mining experience of which three or more years must have been specialized experience which required supervision of difficult, important, and responsible work, subject only to the general supervision and review, in a position of at least the responsibility required of a mine superintendent, mine foreman, mining engineer, or safety engineer.
The third grade, known as the CAF-12 grade, with a starting salary of $6,235 per annum, requires 8 years of progressive experience in the